We come to amendment No. 16a. Amendment No. 17a is an alternative; amendment No. 33 is related; amendments Nos. 34 and 35 are alternatives to amendments Nos. 33 and amendment No. 36 is related. I suggest, therefore, that amendments Nos. 16a, 17 and 33 to 36, inclusive, be taken together if that is satisfactory. Agreed.
Employment Equality Bill, 1996: Report Stage (Resumed) and Final Stage.
I indicated on Committee Stage that if Members so wished I would have no objection to this group of amendments being discussed in committee in case Members wish to amplify any particular point. In honour of that commitment I move that this group of amendments be discussed in committee.
Is that agreed? Agreed.
Bill recommitted in respect of amendments Nos. 16a and 17.
I move amendment No. 16a:
In page 27, to delete lines 42 to 47 and in page 18 to delete lines 1 to 15 and to substitute the following:
"(4) For the purposes of ensuring the availability of nurses to hospitals and teachers to primary schools which are under the direction or control of a body established for religious purposes or whose objectives include the provision of services in an environment which promotes certain religious values, and in order to maintain the religious ethos of the hospitals or primary schools, the prohibition of discrimination in subsection (1), in so far as it relates to discrimination on the religion ground, shall not apply in respect of —
(a) the nomination of persons for admission to the School of Nursing pursuant to clause 24(4)(a) or (c) of the Adelaide Hospital Charter as substituted by paragraph 5(s) of the Health Act, 1970 (Section 76) (Adelaide and Meath Hospital, Dublin, incorporating the National Children's Hospital) Order, 1996, or
(b) places in a vocational training course specified in an order made under subsection (5).
(5) Where an educational or training body applies to the Minister for health, in the case of hospitals, or to the Minister of Education, in the case of primary schools, for an order permitting the body concerned to reserve places in a vocational training course offered by the body, the Minister for Health or the Minister for Education, as the case may be, may, with the consent of the Minister, by order allow the body to reserve places in such numbers as seem reasonably necessary to the Minister for Health or the Minister for Education, as the case may be, to meet the purposes set out in subsection (4).
(6) Without prejudice to section 3(1), an order under subsection (5) may be revoked by a further order made by the Minister for Health, or the Minister for Education, as the case may be, with the like consent; but any such revocation order shall contain transitional provisions safeguarding any person who, in reserving places on such a vocational training course as is referred to in that subsection, took advantage of the provision made by the order being revoked.".
I would like to make a textual amendment, for purposes of clarity, to No. 16a as circulated. I have discussed the matter with my colleagues and they are agreeable to it. I move the following amendment to amendment No. 16a:
To delete paragraph (6) and substitute the following:
(6) Without prejudice to section 3(1), an order under subsection (5) may be revoked by a further order made by the Minister for Health, or the Minister for Education, as the case may be, with the like consent; but any such revocation order shall contain transitional provisions safeguarding any person who took advantage of the effect of the order when it was in force.
As I explained extensively at the select committee, a provision along the lines of section 12(4), (5) and (6) is considered necessary to accommodate the needs of minority denominations in particular and the successful launch of the Tallaght Hospital. In the circumstances I must oppose amendment No. 17.
Amendment No. 16a, in its new form, arises following the further consideration which has taken place on section 37(1). I agreed to re-examine the text of section 37(1) and in doing so I held extensive consultations with a comprehensively wide range of interests. In the course of those consultations it was put to me that the interests of minority denominations in particular, would be best served if a similar arrangement with regard to discrimination on the religion ground as regards reservation of places in the school of nursing could also be applied in respect of reservation of places on a training course in a college established for the purpose of training teachers for primary schools.
It was also represented to me that since section 12 was published last July, the Minister for Health has introduced the Health Act, 1970 (Section 76) (Adelaide and Meath Hospital, Dublin, incorporating the National Children's Hospital) Order, 1996. This order gives effect to the charter negotiated and agreed which facilitates the establishment of the new Tallaght Hospital.
The relevant authorities associated with the charter have indicated that explicit reference to the order in this Bill is warranted if the agreed elements of the charter which protect religious ethos are to be safeguarded. This exclusion is intended to respond to this concern and ensure that the successful evolution of the new hospital is not compromised. This amendment seeks to respond to the various representations. It ensures stringent controls will continue to be applied in the application of any special arrangement of this nature. In particular it involves the participation of both Houses of the Oireachtas where an order is made in any specific case. I am satisfied that such a provision will ensure that minority denomination interests in this respect will be appropriately protected.
In regard to Government amendment No. 33, Deputies will recall that I undertook to give early notice of any amendment I might bring forward on Report Stage on section 37(1). My proposed revision of this provision is the culmination of a long process of consultation which I have undertaken with a wide variety of interests and it was duly published on 29 January 1997 to facilitate Deputies. The purpose of this provision is to recognise that there is an appropriate balance to be found between the rights of denominations and those who use and work within their establishments.
From the outset I have sought to achieve this balance of rights and have taken the initiative of seeking a broad range of views on the Bill to determine whether and how the text might be improved. As well as examining a large number of submissions and representations, I and my officials had a meeting with IBEC and ICTU, the three teacher unions — INTO, ASTI and TUI — representatives of the Catholic and Church of Ireland hierarchies, CORI, the Secondary School Council of Governors, the National Parents Council primary, as well as a wide range of other bodies. In the light of all these consultations as well as extensive deliberations with colleagues and with the Attorney General I have obtained Government agreement to a new draft of section 37(1). The revised version represents a reasonable and measured balance between the very different views on this most complex and sensitive issue.
This amendment benefits considerably from the constructive submissions made by both teachers and the churches. It is not a victory for one side over the other but rather the Government's best effort to find the right balance which protects the legitimate interests of both. In so far as it gives discretion and flexibility to denominational bodies, it does so in order to support development of greater pluralism in Irish society and afford due respect for the rights of minorities in this State. However, this discretion is made subject to certain clear criteria and is reviewable by an independent director of equality investigations.
On Committee Stage we did not take these two sections together and I wonder why they are amalgamated for the purpose of discussion today. When we discussed on Committee Stage the section dealing with Tallaght Hospital I expressed my reservations about the section. I listened very carefully to the arguments the Minister put forward at that time. He said he had sought to apply a tight control on the operations of the Act. I accept he has tried to arrive at an amendment in relation to Tallaght Hospital, the availability of nurses to hospitals and teachers to primary schools which are under the direction or control of a body established for a religious purpose. I accept that under amendment No. 16a he has tried to reach a compromise that would ensure the tightest controls possible are applied. He said it would be tightly controlled, I accepted that at the time and said I looked forward to the Report Stage amendment. I do not have a problem with the proposal in amendment No. 16a as it is important to respect legislation already in place.
I am unhappy that we are dealing with section 37 at this stage and I would like to know the reason for this.
Like Deputy Keogh, I do not have a problem with amendment No. 16a.
In recent weeks all Deputies have received correspondence on the provisions in section 37(1). We have excellent schools and it is important that they maintain their traditions and ethos. This section is broadly designed to achieve this. It is important to remember that individual freedom does not imply one can go around willy-nilly and have one's way in everything regardless of its effects on society. It does not mean that when we talk about reform we should throw the baby out with the bath water. This country has accumulated great treasures in terms of tradition and values over the centuries. These are largely based on the basic precepts of highly respected religions and we would be very foolish to be so arrogant as to readily discard them.
On 21 November last year Deputy Kathleen Lynch told the Select Committee that her party, Democratic Left, was not at all happy with some aspects of the Bill. One of her specific reservations related to section 37(1). She said she proposed to table an amendment on Report Stage which would seek to delete section 37(1). She claimed she spoke on behalf of her party. The Minister told the committee that the Government, which includes Democratic Left, had agreed unanimously on the wording of the Bill. The Minister rightly queried Deputy Lynch's position and stated "it was puzzling in the extreme". I could not agree more with him. My sympathies in this matter lie entirely with the Minister. It appears Democratic Left decided as far back as last November to go into an election mode and to start its campaign by trying to create problems between it and the Labour Party.
Section 37 is an important part of the Bill. The word "pluralism" is bandied about a great deal nowadays. One definition of pluralism is the existence in a society of groups having distinctive ethnic origin, cultural forms, religions etc. Most people would agree we must do everything in our power to enable these groups to maintain their chosen ethos to the greatest extent possible so long as they do not infringe upon the rights of others. It appears Democratic Left wishes to deprive all these groups and individuals of the rights enshrined in the Constitution. This would be an attack on the fundamentals of pluralism.
The original wording of the section was stark, to say the least, and I understand why many people objected to it. It seemed to justify the concept of discrimination which is defined as "unfair treatment". The words "positive discrimination" might have been a wiser choice. The Minister's amendment is an improvement but I had difficulty at first glance with the inclusion of the words "prospective employee". However, I assume this means that a prospective employer, having being satisfied that the candidate is properly qualified for the job on offer, has the right to point out to the candidate that he or she must not go outside the bounds of the job or seek to undermine the religious ethos of that institution. If the Minister can satisfy me on the meaning of the wording I will have no hesitation in supporting it.
The Minister will be aware of the amendment circulated by the INTO which proposes to broaden section 37 to include the groups it believes will be discriminated against. Will the Minister give his views on this amendment and reassure the INTO that these groups are already adequately covered in the Bill? In many areas individuals on a board of management may have reason to object to the appointment of a person who belongs to one of the groups referred to in the INTO amendment. Will the Minister outline the protections available for the groups referred to in the INTO amendment and what is meant by "prospective employee"? My understanding is that it relates to discrimination before an interview. This would be the same as a garda arresting a person immediately he leaves his house because he thinks he may rob a bank. It may be possible for people to be discriminated against at an early stage because of their beliefs. This section has given rise to a great deal of debate in recent weeks.
We had a rather extraordinary Committee Stage debate on this matter during which Deputy Lynch read out a prepared script, which is unusual on Committee Stage, to the effect that Democratic Left would not support section 37 as it stood. Those of us who had worked on the Bill and put down amendments were taken aback. A question was raised as to the Government's collective responsibility for the Bill, but the Minister has come back subsequently with a different amendment. I am not too unhappy with the Minister's amendment because the original amendment I tabled on Committee Stage called for the deletion of the most objectionable clause which stated "... or is reasonable in order to avoid offending the religious sensitivities of its members or clients". I regarded that as most offensive and felt the most reasonable approach to take was to delete it.
The different ethos in relation to Tallaght Hospital has already been mentioned. Much debate has taken place on maintaining the ethos of particular denominations within schools and it is reasonable for parents and students of a school which they understand to have a certain ethos to expect that to be maintained. Did the Minister get all round agreement on this issue? I am aware the Church of Ireland is anxious that amending legislation would reflect its concerns so that the ethos and traditions of its schools are preserved. It says anything less is unacceptable. The Church of Ireland is obviously not totally happy with this amendment.
It is reasonable to respect the ethos of a school. It was unreasonable to have the prospect of an individual being discriminated against simply because somebody else's religious sensitivities might be offended. If we are to have a pluralist State, we must protect the rights of individuals; we do not want the spectre of the Eileen Flynn case coming back to haunt us. In respecting the ethos of a school we must ensure that individual teachers do not fear they will be discriminated against on minor grounds, as many people see it. It is not appropriate that the private lives of teachers who are supporting the ethos of their schools be put under scrutiny. That is not fair and it should not have been included in the Bill.
Is the Minister satisfied that his amendment meets the needs of the many disparate groups? It is obvious from newspaper reports that the teachers' unions are divided on the compromise put forward by the Minister. I do not know about the Catholic Church but the Church of Ireland does not appear to be too happy with it. Is the Minister confident it will have the support of all these groups? I have a great deal of sympathy for the Minister because one would need to have the wisdom of Solomon to adopt the right approach on this issue, but a reasonable balance must be achieved.
I am not aware of the views of the Minister's colleagues in Democratic Left on this matter. The least they will say is that an amendment was made but I cannot understand the reason well established procedures in the House were not adhered to and why we did not have sight of its members' amendments to comment on them more fully.
(Laoighis-Offaly): I welcome the opportunity to contribute to the debate. I spoke in detail on Second Stage and, like many other Members who contributed to that debate, I referred to the difficulties that might arise in regard to the implementation of section 37(1) as originally drafted. I understood and supported the intention of the Minister to provide legitimate protection against discrimination in employment while respecting the traditions and ethos of the various State institutions.
The Minister acted on the best advice available to him but he told us on Second Stage that he would listen to suggested wordings for the section. He asked me privately about my suggested wording and I had to admit that while I could identify the shortcomings in the proposed section 37(1), it was more difficult to balance the various legitimate interests in any replacement wording. I acknowledge the Minister's openness in trying to improve the wording of the section. I am aware the Minister consulted many groups in the preparation of the Bill and following Second Stage debate. His proposed amendment to section 37(1) is the best attempt we can make to balance the legitimate interests to which I referred.
I was puzzled by the suggestion in the original section 37(1) that nothing in this Part or Part II applies to discrimination by religious, educational or medical institutions if the discrimination is on grounds other than gender, age or disability. I did not see the logic in excluding those while including the other grounds. It is more appropriate to suggest, as the Minister does in the revised section 37(1), a more positive way of examining and addressing those concerns. We are accepting the ethos of religious institutions in a positive way while acknowledging the rights of individual employees.
I am aware of the concerns of the INTO in relation to this matter and I would like to hear the Minister's response. From my discussions with INTO members at local level I believe they would be happy with a provision prohibiting the employee from undermining the religious ethos of the institution in question. I understand that is what the Minister has proposed. The INTO members conceded the right of schools in this case to promote and maintain a religious or nonreligious multi-denominational ethos as the case may be. They were prepared to concede that employees, such as teachers, should not deliberately undermine that ethos and this amendment is the most reasonable way to address that concern.
I share the puzzlement of Deputies McDaid and Keogh at the interventions of my colleague, Deputy Lynch, on Committee Stage. Deputies Woods, Eric Byrne, Keogh, myself and others expressed reservations about section 37(1) as drafted. I had no reason to believe — I was subsequently proved right — the Minister would not note the concerns expressed. He was open to suggestions and positive proposals on the divorce and occupiers' liability legislation. To go on a solo run and threaten to put down an amendment, which did not materialise, was not the way to deal with the matter. I can understand why such a threat might be necessary in the case of some Ministers, but not in the case of this Minister and this legislation. However, the matter got newspaper headlines and focused attention on the Bill. I wonder if Deputy Lynch will engage in similar threats on the Social Welfare Bill.
I commend the Minister on his efforts and hope he addresses the concerns raised by the INTO. I am satisfied he has gone as far as possible to accommodate the concerns of the Church of Ireland Board of Education, Catholic primary school managers and other organisations. This amendment will enhance considerably the effectiveness of the legislation.
None of these amendments will impinge on existing rights. I am confident this section, along with others, will allow teachers and other employees to vindicate rights that may have been implied but not explicit in law. It will provide an accessible avenue, through the equality investigations officer, for cases of discrimination to be investigated and redressed without going to court. The Bill will enhance protection against discrimination for all people in employment.
I congratulate Deputy McDaid on his promotion. This is probably one of the toughest assignments a Member has been given on his or her first day in a new position. It is a huge tome of legislation, the most comprehensive and far reaching introduced in the past 20 or 30 years. It will take us well into the next century and ensure workers have a degree of protection that is afforded to very few. If similar protection were afforded to politicians I would take Deputies Gallagher, McDaid and Keogh to the new investigations officer who will deal with issues of this nature.
(Laoighis-Offaly): It would be quickly thrown out.
Deputy Gallagher made an interesting contribution. Irrespective of what he says, or how glowingly he puts it, the Minister and those close to him do not believe they are ready for sainthood yet. While the Minister has the qualities not only of a great man but a great Minister, they do not qualify him for sainthood.
Despite what Deputy Gallagher might believe, I did not go on a solo run. I love the way some people hear what they want to hear or have read to them what they like to hear. It is like a bishop being told he will not see a hungry day. The Deputy should read the newspapers. We were in negotiations and our concerns had been expressed. I am one of the few Members who believes in a strong, powerful and adequately equipped Opposition. The recent changes to the Front Bench will ensure that we have better opposition in the future. In a democracy Government and Opposition must operate effectively. Unfortunately, the Opposition did not function at all on this issue and we had to take on its role.
The Deputy's rightful place.
On a point of order, that is an outrageous statement for the Deputy to make. It shows the Deputy's lack of respect for Members. She obviously did not bother to read the amendments tabled by Opposition spokespersons, particularly those I tabled.
Is that a point of order?
I would like the Deputy to withdraw that remark.
As Deputy Keogh has made her point, perhaps she would allow Deputy Lynch to continue.
I hope she will not continue in a similar vein.
In the past half hour I have been the subject of attack from three different Members, one of whom is on the Government side. When I reply to those attacks I am accused of being outrageous even though I am simply stating the facts.
The Chair cannot allow this to happen.
If we had accepted the Progressive Democrats amendment to section 37, religious institutions would still be able to discriminate on the basis of marital status and sexual orientation. That was not a good amendment.
The Deputy should read a later amendment.
The Minister's amendment is excellent because it limits the scope to the protection of the religious ethos. It is a question of balance. None of us would deny that religious institutions have served us well, but we are discussing legislation to protect workers. A proper balance must be struck. This may not be a perfect solution, but there is never a perfect problem. Democratic Left said it would be forced to table an amendment if one was not tabled by the Opposition. The Minister co-operated, an amendment was agreed and, while it may not be a perfect solution, we are satisfied with it. Consequently, it was not necessary for us to table an amendment. We are not talking about an amendment which states that it will have to be determined that it is "reasonable and necessary" to protect the ethos of a school. The term "reasonable and necessary" is difficult to prove. The provision applies to a person who actively undermines the ethos. It does not apply to one's private life.
The section dealing with offending the sensitivities of clients has been deleted. As originally drafted, section 16 dealt with unacceptable sexual behaviour which, depending on the person involved, could mean anything. Such behaviour is now illegal.
This Government is about negotiation. It is made up of three parties that do not have a similar ideological outlook on all issues. However, the Government works well. It deals with the concerns of its backbenchers and, depending on the Minister, with the concerns of other parties.
This Bill, especially sections 16 and 37, proves the Government is prepared to listen and negotiate. We have reached a compromise. It is rich for the Opposition to blame those who brought about these changes when it did not have the courage to propose them.
I congratulate the Minister. When we are long gone from politics the Bill will stand as a testimony to the Government's determination to protect workers. It is a huge Bill, and the Minister has taken it through the House very well.
I supported this section in the original Bill and to that extent I am disappointed changes have been made, although I accept the Minister had a very difficult job and was under pressure from all sides. By and large, he has not done a bad job in producing this compromise. Perhaps he would provide more detail on the views of the different churches. Many of the minority churches are more concerned with this legislation than the majority church.
Deputy Lynch said her party was not on a solo run when it originally raised this issue. If so, and her party had signalled its unease, then the Minister must have been on a solo run, otherwise he was playing poker with the issue. We have heard much over the past two years about a cohesive, strong Government which works together and speaks with one voice. However, if what Deputy Lynch said is correct then somebody's bluff was being called. In this respect, the Minister should recall what happened in November 1994 when somebody tried to call somebody else's bluff. It could end up in a mess.
While the differences may be acceptable, I am disappointed the wording dealing with the religious sensitivities of members or clients has been removed. By my definition, "the clients" mean parents. I am surprised that those Deputies who are advocates for parents in other education debates appear to take a different view on this issue. Presumably the Minister has teased out this aspect with his colleague, the Minister for Education, in connection with the Education Bill. Does the new wording pass the test of that Bill?
The controversy over this section arose on the issue of rights. It is important that the rights and dignity of teachers be guaranteed. Everybody, including the churches, is agreed on this. Similarly, it is important that communities can avail of key services, the most important being medical and educational, which are delivered according to the ethos shared by their members. This is why the rights of parents are central to this section.
Rights sometimes clash. It could be argued that a teacher's right to a private life may be in conflict with the expectation of the school and by extension the parents served by the school and its ethos. For example, an affair between a teacher and a senior student could cause conflict in this area. There are no easy solutions. While it may be believed that a person's private life should not be a consideration with regard to promotion it would in this instance be an issue of concern to the school, especially to parents. They would expect the school authorities to take action on such matters.
How are conflicts of rights resolved? There must be a test of reasonableness when disputes like this arise. The Minister has provided for an appeals system, which is the guarantee teachers and other workers require. What test must be applied by the appeals mechanism? According to the new wording for section 37(1)(a), provided by amendment No. 33, more favourable treatment to maintain the religious ethos must be on the religion ground. Will the Minister clarify that this refers to the religious ethos of the school, rather than the religion of the teacher? If it referred to the individual's religion, rather than the religious ethos of the school the focus would be too narrow.
Amendment No. 33 also stipulates that, under section 37(1)(b), the action of the school must be "reasonably necessary" to prevent the undermining of the ethos. Notwithstanding the negotiations the Minister undertook, this carries a real threat of discrimination against the rights of parents, especially those whose children attend a school with a strong religious ethos. Much depends on the definition of the words "reasonably necesary". It could be construed as being close to essential. This would make it too onerous on a school to prove, in an atmosphere where any kind of values based choice may be suspect, that its action was "reasonably necessary".
The reason for the action must be to prevent the undermining of the ethos. How would the school prove that? Would it have to show that the teacher would undermine the ethos as well as show that its action would prevent the undermining? These are very difficult to prove. The burden of proof is on the school manager and the parents to show their action is necessary to defend the ethos. More simple wording, such as taking action which is reasonable to maintain the ethos, might be better because it would uphold the concept of reasonableness while defending the rights of parents and schools to uphold their ethos and give the children the benefit of it. I appreciate the Minister has done his best. It was difficult, both in Government and the wider community, to get everybody on board and keep them happy. However, I am disappointed the Minister has, to some extent, bent under pressure.
This is important legislation for which we have waited a long time. It is most welcome and credit is due to the Minister for his work and his efforts to deal with the different issues, particularly those relating to the amendments. It would be a shame if the Bill was undermined by a misunderstanding of the intention of the section. Will the Minister clarify how he considers it will work in practice? What type of behaviour could be seen as undermining the ethos? Will the Minister outline the criteria under which that will be judged and the other factors which will influence it? The unfair dismissals provisions will continue to apply.
The Bill provides greater protection to all workers and it is ironic that teachers and other groups are anxious that their rights may have less protection under the legislation. Will the Minister comment on that fear? It may involve a misunderstanding of how the section will apply and how it could be interpreted. The trust of the Bill is to give more protection to workers in many areas and, given the Minister's efforts to balance the rights involved, it may help if the section is clarified. There are concerns that, for example, a teacher who is a single parent may be more vulnerable under the legislation. I ask the Minister to clarify that point.
The Bill is complex and even with everybody's best intentions, it is not easy to find a wording which will satisfy all the interests. I was happy with the Minister's original wording in section 37 but I recognise the pressures to which he was subjected. He acknowledged those pressures when he described Deputy Lynch's statements as puzzling in the extreme. The Minister told the committee there was unanimity in Government about the original wording. His presumption that unanimity existed must have been based on a belief that full examination and consultation had taken place in relation to what the Government considered proper and correct and a recognition that the best possible provision had been proposed. I maintain that the Minister initially came up with a most acceptable form of wording in a most difficult and complex position. I spoke to the Minister and I expressed my personal attitude by making that point to him.
However, it appears to people who were satisfied with the original wording that the change occurred because of the attitude of an individual or a small party in Government and that it was forced on the Minister for political reasons which are not necessarily the best in the circumstances. I do not intend to be disrespectful but the change places the Minister in a discredited position. This is the view of people who supported the original wording and who recognise that the Minister had to yield to the 1 per cent reflected by Democratic Left, formerly the Workers' Party. I suppose little changed except the name.
It must be acknowledged that explanations and definitions must be given to the House about the change. The words "reasonably necessary" are contained in the amended section but what is considered reasonable and necessary must be established. Will the Minister illustrate the circumstances in which he would consider something is reasonably necessary? I envisage many problems in this area, whether it involves teachers or people seeking services in hospitals. For example, a board of management in a school may have a view on what is right and necessary. This also applies to parents and it has been acknowledged that they have a special right in the educational area as the primary educators. In addition, there are different views in different parts of the country.
One view may be held in Dublin and the other cities but there may be views in rural Ireland which may not necessarily be similar or compatible. It is difficult to come to terms with different social attitudes because a matter may be acceptable in one location but unacceptable in another. There were examples of this problem in the past. I do not consider it proper that a person who is not married should be considered unsuitable because they have a child. People should be entitled to personal private lives unless they import them into their employment and work from that position. A difficulty arises if they introduce an ethos into their work which conflicts with what is intended as a necessary and primary basis for the type of education offered.
The Minister must provide examples of what he has in mind in relation to the new wording. In so far as he can, he must provide the fullest possible definition of "reasonably necessary" because I envisage a broad basis for argument, misunderstanding and conflict. This must be avoided in schools, between schools and parents and between strong individuals who are members of management boards and who may have a severe or less severe attitude. The Minister moved from the original position, which is regrettable, for reasons that are not the best, that is, for political reasons. He was put under obvious pressure by Democratic Left and in the circumstances he should justify the changes made.
(Carlow-Kilkenny): I disagree with Deputy Doherty on two counts. He said that the Minister is discredited.
I did not say that, I said that it is the view of many people that the reason for the change causes him to appear discredited, and I was very respectful in making that suggestion.
(Carlow-Kilkenny): I will not put words in the Deputy's mouth, but the Minister is the present day Solomon because he had a most difficult job to do.
I acknowledge that.
(Carlow-Kilkenny): There are two views on this matter. I defend the religious ethos of schools, particularly since I was a teacher — I am not as concerned about hospitals although that is an important issue for them too. Schools are entitled to make decisions in favour of their own supporters. For example, if a Muslim school receives applications from Roman Catholics, Church of Ireland people and Muslims, it would be reasonable to expect that it would favour a person of its own faith. That is very much in keeping with what I regard as the ordinary person's view.
Teachers who contacted me are very concerned that extreme lines may be taken on grounds of religious ethos, that if a person does not practice the faith according to high standards, the board of management or chairperson may ask that person to resign. I spent more than 32 years teaching and never witnessed an unreasonable attitude on the part of managers towards teachers. Sometimes they were over-lenient with people who had characteristics that were not suitable for teaching. It is a sign of the times that people are not concerned about bishops or priests but about right wing Catholics who take a strict line on what they believe is the standard which teachers should meet.
These amendments are encouraging to teachers in that they do not place unreasonable demands on them — they will not have to go around with halos. The religious ethos may be undermined not by a teacher not attending Mass on Sunday but by deliberately preaching that which is in direct conflict with the religion. To preach, for example, in the Roman Catholic Church that the Pope is a fool or that the Blessed Virgin never existed would undermine the Catholic ethos. Teachers are human and will never be declared saints by the Church — I know many great teachers and I do not wish to run them down — but they are genuinely concerned that they may be treated badly simply because somebody decides they are not as good as they should be.
In these amendments the Minister has reached a compromise. The religious ethos is preserved and schools are defended. The compromise reached preserves the ethos of schools while assuring teachers that they do not have to be angels. The Minister has done as good a job as possible in dealing with this matter.
Arising from Deputy Lynch's comments, I wish to put a question to the Minister. He was at pains earlier to say that he had lengthy discussions with all sides and had reached a compromise which he believes is acceptable, but I am not sure about that. Deputy Lynch claims all the credit.
(Carlow-Kilkenny): The Deputy should take no notice of that.
I agree with much of what has been said. It is very difficult to arrive at a compromise on this issue that will please everybody, and I hope the Minister has not ended up pleasing nobody. I favour my amendment which would delete the most offensive part of the Bill.
I thank Deputies who contributed on this particularly difficult section. I appreciate their thoughtful and analytical comments on such a complex matter. Having listened to the debate, I accept there is broad support in the House for the amended provision. I wish to make a preliminary point which was referred to by Deputies Frances Fitzgerald, Gallagher and others. Workers and prospective workers have various rights under legislation, such as the Unfair Dismissals Act which provides for the making of claims for judicial review in the event of unfairness and so on. This Bill in no way amends, revokes or repeals existing remedies for workers under legislation. It gives additional rights to a broad range of people in certain categories — the nine categories are listed in section 6 — for example, people with disabilities and people who are discriminated against on grounds of race, religion and so on. The Bill does not take away existing rights, and that should be borne in mind.
Deputy McDaid spoke about a prospective employee and I am glad he mentioned that point because it warrants clarification. The Bill deals with circumstances of employment and covers a person's maintenance in employment, for example, whether a person can be dismissed. That is one aspect of employment it includes. The second category is whether or not a person would be promoted in their employment and the third category is whether a person would be taken into employment or not. That is the position of the prospective employee.
I have been asked for an illustration of that position. It might arise if a vacancy was advertised for a teaching position and a person who applied felt they did not get the job because he or she was black or had a disability. That is a prospective employee who would have no remedy under existing legislation. With this Bill, if the person could establish that he or she was discriminated against as a prospective employee because of colour or a disability, a claim could be brought and adjudicated by the independent adjudication system and director of equality investigations being established in this Bill.
Deputy Doherty sought examples of cases that might arise. That is difficult because the cases and facts of each case are capable of such variation that it would be extremely difficult to categorise specific facts and cases. The number of possible permutations and combinations there could be is enormous. That is why, in preparing legislation such as this, one must accept the best norm. The best that can be taken is reasonableness, which depends on the particular facts that arise in each case. Virtually all our law works on that basis, such as the law of negligence.
What is negligence? It is the aspect of law used more frequently in our courts than any other and it is what a reasonable person would or would not do. That is determined by the tribunal taking all factors into account. However, I will assist Deputy Doherty by giving him a case from both extremes but he should bear in mind the huge area in between open to the determination of the tribunal, depending on the facts of each case.
Part of amendment No. 33 states:
(a) it gives more favourable treatment, on the religion ground, to an employee or a prospective employee over that person where it is reasonable to do so in order to maintain the religious ethos of the institution;
We should bear in mind we are not just speaking of teachers but all employees. Let us consider a Protestant educational institution with large grounds that seeks to employ a gardener. As it is a Protestant institution they may insist on having a Protestant gardener; a Catholic gardener may apply for the job and be refused because he is Catholic. The director of equality investigations would have to determine if it is necessary that the gardener be of the same religion as the institution to maintain the religious ethos. I would think it unlikely that the director would so hold.
That is one end of the spectrum. The other end would be a vacancy in a Protestant school for a teaching position that involved teaching the ethics of that religion. The tribunal would, I think, hold that to maintain the religious ethos it would be necessary that the person be of that religion if the subject to be taught was religion or a connected subject such as morality or ethics.
I have been asked to amplify the following part of amendment No. 33:
(b) it takes action which is reasonably necessary to prevent an employee or a prospective employee from undermining the religious ethos of the institution.".
The basis is simple and the best law is always simple law. We accept that denominational education in Ireland is an integral part of our system. There are a small number of non-denominational schools but we are talking about the overwhelming majority of denominational schools. We accept, therefore, that the religious ethos of these institutions is a key factor. With this part of the amendment, if an employee is doing something to undermine that ethos, then he or she will not have the protection of the Bill, though the circumstances and all factors would have to be taken into account.
Deputy Doherty raised an interesting comparison between a school in an urban part of Dublin and one in a rural area of his constituency. That could also be a factor that the director of equality investigations would take into account, though it would not be the only one. The nub of the decision is simple and clear: is what is being proposed by the school reasonably necessary to prevent this person from undermining the religious ethos of the school? That is the ultimate point for the independent director of equality investigations to determine as best he or she can, taking all factors into account.
Deputy Keogh asked if this proposed amendment reasonably met the needs of the various groups. That is difficult for me to say. I listened carefully and sympathetically to all representations and this strikes a reasonable and fair balance. The INTO have a position on this and Deputy McDaid referred to an amendment suggested by them. The INTO are not elected Members of the House and amendments are tabled by Members. The amendment before the House is structured in such a way as to give a fair balance. I do not see amendment No. 33 giving victory to one side or the other, nor was it intended to. It results from my listening carefully to and taking cognisance of all points made to me and striking a fair and reasonable balance that takes account of the employers' and employees positions.
There is a new procedure here. The decision is being made by an independent tribunal which will not depend on the decision of one side or the other. There will be an independent adjudication process and an appeals procedure available.
Deputy Noel Ahern asked what the test would be. The test is the one that applies in most aspects of law of this nature — reasonableness. What better test can one have? The converse of reasonableness is unreasonableness, which nobody would advocate. The test is appropriate, fair and will work reasonably well.
The Deputy raised a question about the burden of proof. The usual procedures would apply as in any other case. A person who alleges something has to establish it on the balance of probabilities. That is the basis on which the legal system operates and it would operate in that way in regard to this legislation.
I am grateful for the understanding and support of Members.
I understand that the INTO's wording was put forward for discussion. Can the Minister clarify that the matters relating to section 6 are catered for? If an institution of the minority religion wants to employ a member of its denomination it may have to let go a person of another denomination who is already employed there. Will that be regarded as being discriminatory?
The Minister outlined three categories, promotion, continuance of employment and taking into employment. In the case of promotion and continuance of employment the person involved is already an employee.
The taking into employment refers to the prospective employee.
It refers to a person coming in at interview stage. It does not include the promotion or continuation of employment.
The wording refers to the religious ethos of the institution and not simply its ethos. The word "religious" appears in paragraphs (a) and (b). The meaning is clear enough. It would be open to any person who feels disaffected to go to the director and have the case adjudicated upon on the basis of (a) and (b). However, it refers to the religious ethos.
The wording of paragraph (a) in amendment No. 33 states: "it gives more favourable treatment, on the religion ground, to an employee ... over that person where it is reasonable to do so ...". In other words, if there was a promotion vacancy the school could give more favourable treatment on the religion ground to an employee. However, if that was challenged they would have to be in a position to establish that giving the promotion was reasonable in order to maintain the religious ethos of the institution. A vacancy for a religion teacher would be an obvious example.
Amendment No. 1 to amendment No. 16a agreed to.
Amendment No. 16a, as amended, agreed to.
Amendment reported.
Amendment No. 17 not moved.
I move amendment No. 18:
In page 19, to delete line 4 and substitute "Obligations of Employers, etc”.
This is a technical amendment to the heading in the text of the Bill.
Amendment agreed to.
Amendment No. 29 is related to amendment No. 19; amendment No. 32 is consequential on amendment No. 29; amendment No. 30 is an alternative to amendment No. 29 and amendment No. 31 is consequential on amendment No. 30. Therefore, amendments Nos. 19 and 29 to 32, inclusive, may be taken together. Is that agreed? Agreed.
I move amendment No. 19:
In page 19, lines 35 and 36, to delete "but this subsection is without prejudice to section 35(4)" and substitute "and, subject to section 35(4), an employer shall do all that is reasonable to accommodate that person's needs, in particular, by allowing or, as the case may require, making provision for, such treatment or facilities or, by providing such treatment or facilities".
Amendments Nos. 19, 29 and 31 arise directly from my commitment to strengthen the Bill's provisions with regard to the employment of people with disabilities. In the course of the wide range of consultations I had on the definition of disability it was repeatedly mentioned that the Bill should seek to be more proactive in its approach to protecting the positions of persons with disabilities in gaining access to and retaining employment. I indicated in response to these representations that I would seek to build on the positive approach adopted in section 16(3).
As a result, I have enshrined in the Bill the concept of reasonable accommodation for persons with disabilities. This is accomplished by the requirement in the amendment to section 16(3) for an employer to do all that is reasonable to accommodate the needs of a person with a disability. While this requirement is subject to the revision of section 35(4), it is suitably reinforced by an amendment to that subsection.
The obligation placed on the employer to provide this reasonable accommodation is subject to what is reasonable. A test of undue hardship is therefore applied so that unreasonable demands are not made. The clear exposition of criteria in section 35(5) against which undue hardship can be assessed is a necessary and valuable protection in the interests of employers and persons with a disability. I recommend these amendments to the House.
I am glad the Minister tabled these amendments. There was much discussion on the matter and people with disabilities were very concerned about the possibility of exclusion. I had said that we should wait for the advice of the Commission on the Status of People with Disabilities and leave the matter to be dealt with by way of regulations. However, I am happy to agree to the amendments.
Amendment agreed to.
Amendment No. 20 not moved.
I move amendment No. 21:
In page 19, to delete lines 43 to 47.
This is a technical amendment.
Amendment agreed to.
Amendments Nos. 23 and 24 are related to amendment No. 22. The suggestion is that these amendments be taken together. Is that satisfactory? Agreed.
I move amendment No. 22:
In page 23, lines 44 to 46, to delete ", other than an act which no reasonable person could consider to be sexually offensive, humiliating or intimidating to A".
A great deal of concern was expressed about sexual harassment provisions in the original draft of this Bill. The difficulty was that the Bill introduced new tests of sexual harassment despite the fact there is well established juris prudence and exemplary practices by employers and unions in Irish workplaces with codes of practice. The belief was that we were stepping backwards from the trend already established. There were difficulties about questioning a complainant's personal lifestyle etc. The Minister went some way on Committee Stage by deleting subsection 4. The fear is that people will find it more difficult to pursue sexual harassment in the workplace.
A key feature of sexual harassment is that it is unwanted and unsolicited. People are not concerned whether it was deliberate or unintended. A person is the victim of sexual harassment if he or she does not want it, did not solicit it and the issue is not whether it is deliberate or unintended. Some people also feel that it is gender based and that one cannot have sexual harassment of a person of one gender on a person of the same gender. The Minister has not quite addressed that. Can that be addressed in this section?
In November I explained at some length why I could not accept Deputy Keogh's amendment to delete the reference to reasonable person tests which have been adopted in this section. A reasonable person test has been incorporated into this provision as a legal way of providing for an assessment of the offensive, humiliating and intimidating nature of any act from the perspective of a neutral observer. Some interest groups fear this approach will lead to weakening of protection against sexual harassment in Irish law. I am satisfied, however, that this is not the case. In the first instance, the arbitration of what is reasonable will be for the director of equality investigations, the Labour Court or the Circuit Court to decide. Second, I see no reason for the Labour Court which has already adopted a progressive approach on this matter under the 1977 Act to interpret this explicit provision in a less protective way and employ a less reasonable approach to harassment under this Bill than to date. In the circumstances I propose the reasonable person test should be retained as drafted and accordingly I request the withdrawal of Deputy Keogh's amendment.
I have already examined the proposal in amendment No. 24 for an additional paragraph in this subsection. In drawing up this section I sought to catch a wide range of activities as constituting sexual harassment. In particular, in section 23(2)(c) I provided that any other act or conduct not already mentioned in (a) and (b) which would meet the reasonable test of what is sexually offensive, humiliating or intimidating will be encompassed in the Bill. Deputy Keogh's amendment focuses on exclusively subjective considerations and in the circumstances would not be appropriate as a provision of primary legislation. I am not in favour of the inclusion of such a provision.
There are grave reservations about this. The Minister gave a detailed reply on Committee Stage but I want him to reflect on the fears that section 23 may be in breach of the 1996 directive. I do not know if he must refer to that. I hope this section will be adequate but I remain to be convinced. The Minister said he has heard of these reservations but feels he is adequately answerable.
Amendment, by leave, withdrawn.
Amendments Nos. 23 and 24 not moved.
I move amendment No. 25:
In page 24, between lines 32 and 33, to insert the following:
"(7) At every place where 10 or more people are employed, the employer shall have a duty to introduce, publish and effectively communicate to all persons employed and all customers, clients or business contacts of the employer, a Code of Practice or Conduct in relation to sexual harassment to be observed at that place or any other place where the employer carries on business, within six months of the commencement of this section."
Fianna Fáil moved this amendment to highlight the issue of a code of practice on sexual harassment in every workplace where ten or more people are employed. A code of practice or conduct would make it clear that sexual harassment would not be tolerated. Aer Lingus and the ESB operate such codes of conduct very well. This Bill sets out to give statutory definition to the term "sexual harassment" but it does not go far enough. Sexual harassment in the workplace is so broad that it would require more focused legislation.
Another deficiency relates to the Employment Equality Act, 1976. I am referring to the absence of an adequate provision dealing with liability for employers for the acts of their employees which would involve sexual harassment. A code of practice would be relevant because it would at least give responsibility to the employer. For example, if two employees have a problem and the employer has a code of practice, neither of them could say the employer was not doing anything about it.
A code of practice would put the onus or at least the responsibility on the employer. If, for example, such a problem arose between two employees and if the employer had a code of practice, neither employee could say the employer was doing nothing about it and thus he would be covered. Sexual harassment is an abuse of power but it is inadequately dealt with in the Bill and we should make employers more responsible for dealing with it. I agree with Deputy Keogh that the Bill fails to distinguish between sex and gender. I hope the Minister will be able to accept this amendment and I await his comments.
In the course of the Committee Stage debate I agreed to see what the Employment Equality Agency might suggest to ensure the preparation, publication and implementation of the codes of practice on sexual harassment. While the agency has intimated some interest in the display of suitable notices on employment premises, it is not clear that the policing of such a proposal would be its priority in promoting appropriate codes of practice or conduct. The value of such an approach as a means to bring this issue to the attention of customers and clients is dubious. The proposal would involve policing across all employment establishments as regards not only display, etc. but also content. I am satisfied that resources necessary to pursue this policy could be better used by the agency in promoting its nationally developed standards in this area.
Notwithstanding the constructive nature of this amendment I am not convinced that it is an appropriate way to provide for better protection against sexual harassment in employment. I am satisfied that other provisions in the Bill, particularly as regards the admissibility of approved codes of practice in evidence in any proceedings under the Act, will reinforce the adoption of such a code across employment. The responsibilities of employers in this matter are dealt with under section 15, which covers the vicarious liability of employers and principals for sexual harassment acts of their employees in the circumstances laid down in the section.
Does the Minister believe a more definite and pro-active approach could be taken by the Employment Equality Agency in this regard? This relates to the point behind my earlier amendment, that the onus is on the person who has suffered as a result of harassment rather than on the employer to ensure that the person does not get harassed in the first place. The difficulty with codes of practice is that we need to be sure they are established and implemented within the workplace. From that viewpoint the onus should not be on an employee — usually a woman — to ensure that colleagues or senior people within the organisation adhere to reasonable standards of behaviour. We should not always couch these matters in the most negative terms; in other words, we should not wait for an offence to happen before reacting to it.
How can we ensure that codes of practice drawn up by the EEA become part of the ethos of every organisation and business? People tend to dismiss the seriousness of this issue. We are talking about the violation of an individual and although some might think it a minor matter, it is serious and should not be allowed to happen. There should be a facility within the workplace to ensure that all employees and employers are aware of their responsibilities and of the standards of behaviour which are required within the organisation. How can we ensure this happens? Deputy McDaid's amendment is interesting in that regard because it places a duty on organisations employing ten or more people to introduce, publish and communicate the code of practice. There must be some way to put the onus on employers to ensure the presence of and adherence to codes of practice. The amendment may not be the best way to go about it but we should be definite in this regard.
I agree with Deputy Keogh's comments and I may be able to clarify the position. Paragraph 4.5 of the national code of practice, which was prepared by the agency and published by my Department in 1994, states:
Policy statements should be communicated to all employees and others who may impact on the working environment, for example, customers and suppliers. In particular, they should be (a) provided to all new employees, (b) circulated from time to time among employees, (c) clearly visible in appropriate locations where employees and others will see the statement frequently, for example in canteens or on office notice boards or in changing rooms.
Accordingly, if a similar text is adopted in the code revised under the Bill, due account can be taken of the failure to follow this recommendation in any relevant complaint before the director of equality investigations, the Labour Court or any other court.
Employers' liability in the workplace has not been dealt with adequately. I accept the Minister has mentioned it in those provisions but if we made clear that a specific code of practice was required we would give better focus to an area which will probably cause more problems in the future. We should try to be pro-active rather than reactive and if the Minister had accepted my amendment it would have sent that message. I will therefore press this amendment.
Amendment put.
The Dáil divided: Tá, 56; Níl, 72.
Tá
- Ahern, Bertie.
- Ahern, Dermot.
- Ahern, Michael.
- Ahern, Noel.
- Burke, Raphael.
- Byrne, Hugh.
- Callely, Ivor.
- Coughlan, Mary.
- Cowen, Brian.
- Cullen, Martin.
- de Valera, Síle.
- Dempsey, Noel.
- Ellis, John.
- Fitzgerald, Liam.
- Flood, Chris.
- Foley, Denis.
- Fox, Mildred.
- Gregory, Tony.
- Harney, Mary.
- Haughey, Seán.
- Jacob, Joe.
- Keaveney, Cecilia.
- Kenneally, Brendan.
- Keogh, Helen.
- Killeen, Tony.
- Kirk, Séamus.
- Kitt, Michael.
- Lenihan, Brian.
- Aylward, Liam.
- Brennan, Matt.
- Brennan, Séamus.
- Browne, John (Wexford).
- Leonard, Jimmy.
- Martin, Micheál.
- McCreevy, Charlie.
- McDaid, James.
- Moffatt, Tom.
- Molloy, Robert.
- Morley, P.J.
- Moynihan, Donal.
- Nolan, M.J.
- Ó Cuív, Éamon.
- O'Donnell, Liz.
- O'Donoghue, John.
- O'Hanlon, Rory.
- O'Keeffe, Ned.
- O'Rourke, Mary.
- Power, Seán.
- Ryan, Eoin.
- Smith, Brendan.
- Smith, Michael.
- Treacy, Noel.
- Wallace, Dan.
- Wallace, Mary.
- Walsh, Joe.
- Woods, Michael.
Níl
- Ahearn, Theresa.
- Allen, Bernard.
- Barrett, Seán.
- Barry, Peter.
- Bell, Michael.
- Bhamjee, Moosajee.
- Bhreathnach, Niamh.
- Boylan, Andrew.
- Bradford, Paul.
- Bree, Declan.
- Broughan, Thomas.
- Browne, John (Carlow-Kilkenny).
- Bruton, John.
- Bruton, Richard.
- Burton, Joan.
- Byrne, Eric.
- Carey, Donal.
- Connaughton, Paul.
- Connor, John.
- Costello, Joe.
- Coveney, Hugh.
- Crawford, Seymour.
- Currie, Austin.
- De Rossa, Proinsias.
- Deasy, Austin.
- Deenihan, Jimmy.
- Doyle, Avril.
- Dukes, Alan.
- Durkan, Bernard.
- Finucane, Michael.
- Fitzgerald, Brian.
- Fitzgerald, Eithne.
- Fitzgerald, Frances.
- Flaherty, Mary.
- Flanagan, Charles.
- Gallagher, Pat (Laoighis-Offaly).
- Gilmore, Eamon.
- Harte, Paddy.
- Higgins, Jim.
- Higgins, Michael.
- Hogan, Philip.
- Kemmy, Jim.
- Kenny, Enda.
- Kenny, Seán.
- Lowry, Michael.
- Lynch, Kathleen.
- McCormack, Pádraic.
- McGahon, Brendan.
- McGinley, Dinny.
- McGrath, Paul.
- McManus, Liz.
- Mitchell, Jim.
- Moynihan-Cronin, Breeda.
- Mulvihill, John.
- Nealon, Ted.
- Noonan, Michael (Limerick East).
- O'Keeffe, Jim.
- O'Shea, Brian.
- Pattison, Séamus.
- Quinn, Ruairí.
- Rabbitte, Pat.
- Ring, Michael.
- Ryan, John.
- Ryan, Seán.
- Sheehan, P.J.
- Shortall, Róisín.
- Stagg, Emmet.
- Taylor, Mervyn.
- Timmins, Godfrey.
- Upton, Pat.
- Walsh, Éamon.
- Yates, Ivan.
Tellers: Tá, Deputies D. Ahern and Callely; Níl, Deputies J. Higgins and B. Fitzgerald.
Amendment declared lost.
I move amendment No. 26:
In page 24, between lines 40 and 41, to insert the following:
"(3) All employers who employ more than 30 persons shall, by the 31st day of December, 1999, ensure that three per cent of their workforce are persons with disabilities.".
This amendment is self-explanatory. The only employer which has a quota of 3 per cent of its workforce with disabilities is the Civil Service. If the Minister accepted the amendment all employers employing more than 30 people would have to ensure by 31 December 1999 that 3 per cent of their workforce were people with disabilities. People often correspond with us on this issue and they say we are not making any effort to deal with it. I think there is a directive along these lines
On Committee Stage the Minister referred to the publication of the report of the Commission on the Status of People with Disabilities and said he would examine more positive action on equal opportunities in the context of the publication of that report. Will he give some indication of whether he could implement something akin to what Deputy McDaid suggested?
The opportunities for people with disabilities to gain employment are limited because employers look at all the negative aspects rather than considering the positive ones. We need to make a breakthrough in terms of the thinking on this issue. It is encouraging that the 3 per cent quota has been achieved within the Civil Service but we also need to achieve it in the public service and the private sector, otherwise people with disabilities will continue to be marginalised.
As I pointed out on Committee Stage, this proposal seeks to introduce a statutory obligation and would require considerable development as regards application, dispute resolution and so on before it could be brought into operation. As I indicated previously, such a statutory measure is not appropriate for this Bill. Such a provision has the objective of promoting the employment of people with disabilities as distinct from protecting such persons from discrimination.
It is an issue which is clearly before the Government for consideration, following the publication of the report of the Commission on the Status of People with Disabilities. I intend to address this area in that context and I wish to focus in this Bill on addressing protection against discrimination. I readily acknowledge, however, that the Bill is only a first step to respond to the needs of persons with a disability as regards employment.
I accept that the amendment should not be pressed as it relates to another area. However, the semi-State bodies and health boards, in particular, are doing very little to achieve that small percentage. The Minister has stated he will come back with the report and that it is being looked at by another body so I will withdraw the amendment.
Amendment, by leave, withdrawn.
I move amendment No. 27:
In page 25, to delete lines 20 to 25.
The Minister gave a very reasonable explanation for the inclusion of this provision in the Bill on Committee Stage and I should have withdrawn the amendment then.
Amendment, by leave, withdrawn.
I move amendment No. 28:
In page 31, line 1, to delete "50" and substitute "40".
There are long-term unemployed people over the age of 40 years. The Bill allows for positive discrimination in favour of those over the age of 50 years. Will the Minister change the limit of 50 years to 40 years?
When this amendment was considered in committee I explained that when it came to deciding at what age positive action measures should be targeted I faced the dilemma of setting too high an age threshold which would miss out some age levels which are beginning to experience some age discrimination or set too low an age threshold which would fail to focus the positive action of the age level where discrimination experiences are most acute. I opted for the higher age threshold of 50. I do not dispute that workers younger than that can experience age discrimination. That is why I have legislation like this in the first place and I am sure workers over 40 years of age will benefit greatly as regards protection from age discrimination under the Bill.
However, I consider that positive action measures should particularly target the most disadvantaged age cohort. Age prejudices in employment are most acutely felt by over 50 year olds and if positive action measures for them are developed, the contribution of older workers will be increasingly recognised and other workers under 50 years of age will also benefit.
I would be concerned also that by setting a lower age threshold, as proposed in the amendment, positive action measures might be concentrated at workers under 50 years of age, thus exacerbating the acute discrimination experienced at the higher age level. The provision does not require an employer to adopt positive action measures in this area. Such positive action will, therefore, comprise voluntary measures to be adopted by employers and other interests. In all the circumstances, therefore, I propose to retain the age threshold at 50 so as to focus special attention on the plight of workers who are most disadvantaged by age.
I do not know if Deputy McDaid wishes to press this amendment. The point is well made that discrimination on age grounds has become widespread. In some major organisations one will have to look far and wide to find anyone over the age of 45. I do not wish to name those organisations but they seem to think those over 45 have no potential. That is not the attitude employers should adopt. Slightly older people can bring their experience to bear in the workplace. It is a good reminder for us of the ageism that has crept into society. I do not know the average age here but I suspect it is nearer 40 or 50 than 30. I hope most people would think Deputies are well able to fulfil their functions and pursue their legislative and other duties, regardless of age. People are not dispensable after a certain age.
Deputy Keogh has eloquently outlined the reasons for the proposed amendment, which I am pressing.
Question, "That the figure proposed to be deleted stand", put and declared carried.
Amendment declared lost.
I move amendment No. 29:
In page 33, to delete lines 1 to 8 and substitute the following:
(a) that person needs special treatment or facilities in order satisfactorily to take part in a selection process or to undertake that employment, and
(b) the employer does all that is reasonable to accommodate the needs of that person, unless, having regard to all the relevant circumstances, including, without prejudice to the generality, the matters specified in subsection (5), the cost of the provision of such treatment or facilities for that person would give rise to undue hardship to the employer.".
Amendment agreed to.
Amendments Nos. 30 and 31 not moved.
I move amendment No. 32:
In page 33, line 9, to delete "(4)(b)" and substitute "(4)".
Amendment agreed to.
Bill recommitted in respect of amendment No. 33.
I move amendment No. 33:
In page 34, to delete lines 15 to 24 and substitute the following: "37. — (1) A religious, educational or medical institution which is under the direction or control of a body established for religious purposes or whose objectives include the provision of services in an environment which promotes certain religious values shall not be taken to discriminate against a person for the purposes of this Part or Part II if—
(a) it gives more favourable treatment, on the religion ground, to an employee or a prospective employee over that person where it is reasonable to do so in order to maintain the religious ethos of the institution; or
(b) it takes action which is reasonably necessary to prevent an employee or a prospective employee from undermining the religious ethos of the institution."
Amendment agreed to.
Amendment reported.
Amendments Nos. 34 to 36, inclusive, not moved.
We come to amendment No. 37. Amendment No. 38 is related. I suggest amendments Nos. 37 and 38 be taken together if that is agreed.
I move amendment No. 37:
In page 35, lines 4 and 5, after "employment" to insert "other than civilian employment".
Acceptance of this amendment would ensure that a civilian working in the Defence Forces would not be subjected to discrimination. It is a simple amendment. Those working within the ambit of the Defence Forces should be protected.
My amendment No. 38 reads as follows:
In page 35, between lines 8 and 9, to insert the following:
"where such discrimination is essential having regard to the particular job in question."
There has been much discussion in relation to bringing civilians into various services. If we are to allow discrimination it should be particular to the job that has to be done. I accept that on age or disability grounds in the Defence Forces, it would be inappropriate for somebody who is not in the first flush of youth to have to run around with guns. We must have regard for the particular job that has to be done.
These amendments are repeats of amendments which were discussed at the Select Committee on Social Affairs. In regard to amendment No. 37, I indicated on Committee Stage that an amendment similar to this was not necessary but that I would further examine the provision and revert to the question on Report Stage if necessary. I have re-examined this provision and I confirm that the provision, as drafted, is correct. The exception provided in the subsection clearly applies only to employment in the Defence Forces, in the Garda Síochána and in the prison service. There is a clear statutory basis for delimiting those who are employed in the Defence Forces and the Garda Síochána. Civilians employed by the Defence Forces and the Garda Síochána are outside the statutory delimitation. The exclusion of civilian employment, as proposed in the amendment, would not be appropriate as regards the prison service since all members of that service are civilian employees.
In regard to amendment No. 38, I appreciate Deputy Keogh is attempting to narrow the exclusion in respect of age and disability provided for here for the security services. As I indicated on Committee Stage I am not in a position to acquiesce to this amendment. The Government agreed to these exclusions based on the concerns of the security services that the essential functions of these occupations require that they be undertaken by able-bodied personnel of an age group which is commensurate with the various demands which arise in a security context.
In the Defence Forces every soldier must possess the physical and psychological attributes necessary for combat. The Garda Síochána must be similarly equipped to deal with aggression and criminal activity to maintain the internal security of the State. Similar considerations apply in the prison service. I am concerned to ensure, through the exclusion in section 37(6), that the requirements of the Bill will not diminish the capability and function of the security forces. On the basis of these requirements I have agreed to the present exclusion in the Bill. Accordingly, I must, with regret, continue to oppose these amendments.
Amendment, by leave, withdrawn.
Amendment No. 38 not moved.
I move amendment No. 39:
In page 35, line 14, after "as" to insert "An tÚdarás Comhionannais or, in the English language".
This is a technical amendment which inserts the Irish language name of the new authority in the Bill.
Amendment agreed to.
I move amendment No. 40:
In page 36, line 41, to delete "or".
This is a technical amendment which will ensure consistency within the section.
Amendment agreed to.
I move amendment No. 41:
In page 44, line 15, to delete "and;" and substitute "; and".
This is a technical amendment which deals with punctuation.
Amendment agreed to.
Amendment No. 42 not moved.
We now come to amendment No. 43. Amendments Nos. 44, 45 and 46 are related and I propose that we take amendments Nos. 43 to 46, inclusive, together. Is that agreed? Agreed.
I move amendment No. 43:
In page 49, line 21, to delete "35" and substitute "42".
On Committee Stage I accepted an amendment to section 47 which had the effect of increasing from 35 to 42 days the time limit within which an appeal from the Director of Equality Investigations to the Labour Court must be initiated. There is a number of other sections which provide for appeals. These amendments will increase the appeal periods in such cases to ensure consistency in relation to appeal periods within the Bill. It is a tidying up operation.
Amendment agreed to.
I move amendment No. 44:
In page 50, line 36, to delete "35" and substitute "42".
Amendment agreed to.
I move amendment No. 45:
In page 51, line 45, to delete "35" and substitute "42".
Amendment agreed to.
I move amendment No. 46:
In page 52, line 39, to delete "35" and substitute "42".
Amendment agreed to.
I move amendment No. 47:
In page 60, line 13, after "at" to insert "at any time after".
Section 66 provides that where a person, the complainant, refers a case to the Director of Equality Investigations or the Labour Court, including an appeal, and subsequently fails or ceases to pursue the case the director or the Labour Court may strike it out. The director or the Labour Court may only exercise this right when it appears the case or appeal is no longer being pursued.
Following discussions on Committee Stage, I tabled an amendment which seeks to ensure the court is afforded the same facility as the director in this regard, that is, it may strike out such cases at any time after the expiry of one year since the case or appeal was referred. The striking out of a case in accordance with this section is final. This provision does not, however, prevent a person from initiating another case in respect of the same matter provided any time limits which apply to the case have not expired.
Amendment agreed to.
We now come to amendment No. 48. Amendment No. 49 is an alternative and I suggest that we discuss the two amendments together. Is that agreed? Agreed.
I move amendment No. 48:
In page 61, to delete lines 29 to 49.
The Minister said on Committee Stage that he would table an appropriate Report Stage amendment to deal with this issue. His amendment is satisfactory and I will not press mine.
Amendment, by leave, withdrawn.
I move amendment No. 49:
In page 61, line 46, after "recommendation" to insert "and, in deciding what action is to be taken on the complaint, regard shall be had to the recommendation".
Amendment agreed to.
We now come to amendment No. 50. Amendment No. 51 is an alternative and I suggest that we discuss the two amendments together. Is that agreed? Agreed.
I move amendment No. 50:
In page 63, line 24, to delete "50" and substitute "20".
I would like to know why the figure has to be 50 and cannot be the more comparable one of 20. I am sure this matter was discussed on Committee Stage.
The remarks I made on Committee Stage still apply.
The Minister said on Committee Stage that because this is an initiative the figure of 50 was more realistic. I would like to see an equality review for firms, particularly for the many small and medium sized firms. As this is an initiative I accept the Minister's point. However, if it is deemed possible to reduce the figure in time then perhaps this could be pursued.
Amendment, by leave, withdrawn.
Amendment No. 51 not moved.
I move amendment No. 52:
In page 65, lines 8 and 9, to delete "of trade unions and of employers".
I tabled this amendment to ascertain why the consultation process is confined only to trade unions and employers and whether there could be a wider remit. The Minister did not see a need for this on Committee Stage but it may be possible to include others in the consultation process. This is not an essential point but I want to put it on the record.
Amendment, by leave, withdrawn.
We now come to amendment No. 53. Amendments Nos. 54 and 55 are related and I suggest that we discuss the three amendments together. Is that agreed? Agreed.
I move amendment No. 53:
In page 65, line 23, to delete "Employment Equality Act, 1996'; and” and substitute “Maternity Protection Act, 1994, the Adoptive Leave Act, 1995, the Employment Equality Act, 1997,' and for the words 'either or both' there shall be substituted 'all or any'; and”.
Following representations made to me by the Employment Equality Agency prior to Committee Stage I undertook to review this section, particularly as regards amendments to the provisions of the Employment Equality Act, 1977, dealing with the agency's powers and functions. I explained that it is my intention to address the functions and powers of the new equality authority more explicitly in the forthcoming equal status legislation. I intend, therefore, that the provisions of the forthcoming equal status Bill will facilitate the full repeal of the remaining provisions of the 1977 Act not disposed of in this Bill.
I have been impressed, however, by the case made by the agency for some amendments to the Bill. Accordingly, I have acknowledged the agency's role in advising on the recent Maternity Protection and Adoptive Leave Acts by expressly providing a new statutory function in the Bill in relation to both these Acts. My amendment will confer on the new authority a specific function to advise me on the operation of these Acts and to make proposals to amend them where it considers it necessary.
In addition, I am responding further to the agency by amending the 1977 Act so that the authority will be empowered to represent a complainant in all types of proceedings under the Bill. In specific cases where an important point of principle in the law is concerned, the agency would wish to have discretion to represent the complainant to the High Court or even the Supreme Court on appeals and points of law. There is some doubt that the provision in the 1997 Act in this regard permits such a step and the text of section 73(6) does not appear to cover this area either. In the circumstances I have brought forward amendments Nos. 54 and 55 to meet this need and, accordingly, I commend these amendments to the House.
I agree to these amendments. There is a great deal of concern about the role of the Employment Equality Agency and how it will develop to deal with legislation such as this. I therefore welcome the effort to augment its powers.
Amendment agreed to.
Amendment No. 54 has already been discussed with No. 53.
I move amendment No. 54:
In page 66, line 28, to delete "equality officer)," and substitute the following:
"equality officer)—
(a)".
Amendment agreed to.
Amendment No. 55 has been discussed with No. 53.
I move amendment No. 55:
In page 66, to delete all words from and including "making" in line 35 down to and including line 37 and substitute "taking proceedings for redress under that Act.',
(b) in subsection (2), for the word 'reference', in both places where it occurs, there shall be substituted 'proceedings'; and
(c) after subsection (3) there shall be inserted the following subsection—
'(4) In this section, "proceedings" has the same meaning as in the Employment Equality Act, 1997.'.”.
Amendment agreed to.
Bill reported with amendments and received for final consideration.
Question proposed: "That the Bill do now pass."
I sincerely thank all the Deputies who contributed to the passage of the Bill, particularly Deputies Woods, McDaid and Keogh. Listening to some commentators and critics over the past six months I felt insufficient recognition was given at times to the considerable merits of this momentous legislative proposal. Some critics may have lost sight of the ground-breaking nature of the Bill and some seem to suggest that Ireland should not only adopt a uniquely extensive anti-discrimination law exceeding those in most other countries, but also apply in all areas of discrimination covered by the Bill standards which even surpass those of the advanced countries that have chosen to focus protective provision on a smaller number of discriminatory grounds. That suggestion is not realistic.
The vision and ambition of this and the previous Government in striving to provide protection from discrimination on a wide range of grounds must address many complex legal, social and economic considerations. This Bill balances those various considerations and I make no apology in seeking to bring forward a measure which is sensitive to the many issues involved. In doing so, the Government has adopted a sophisticated, rights-based model which has been tried and tested in the gender area over the past 20 years both here and in Europe generally.
The complexity of the Bill is because of the extensive scope of the protection involved and the range of constitutional, statutory and international legal considerations which must be taken into account as well as the social, economic and commercial context in which the law must operate. I would have preferred to bring forward a more simple Bill but I would be misleading the House if I suggested there was anything simple about the law in this area.
Today we have debated in some depth the extremely delicate religious ethos provisions in the Bill. I appreciate there is a reluctance on the part of some of the interests concerned with this area to welcome the considered text which has now been brought forward. I am convinced, however, that the interests of all the parties concerned have been fairly treated. I thank all the interests involved for their constructive contributions to the conclusion of this subject.
I take this opportunity to thank the chief Opposition spokespersons for their contributions. I am glad I was in a position to respond to some of their concerns.
I congratulate the Minister and his officials for bringing this complex and difficult legislation through the House, and I wish him well with its passage through the Seanad. I may have been critical of some provisions of the Bill but I have always acknowledged the delicate balance that had to be achieved in some areas. Regardless of whether we agree on the result, everyone will acknowledge it was difficult to arrive at some of those conclusions. Many people will be satisfied with the Bill and the Minister knows only too well that he cannot please all the people all the time. I am glad the Minister listened carefully to the arguments put forward on Committee Stage and was prepared to amend the Bill as a result. The one question he did not answer during our discussions was whether it was Deputy Lynch who succeeded in making the breakthrough on section 37; perhaps we should leave that for another day.
I was happy to be involved in the debate on the Bill. I thank the many people who made representations to me. I know many of them will be glad to see this legislation in place. I hope it achieves its objective to ensure people will not be discriminated against on the nine grounds proposed by the Minister.
I would like to be associated with the words of congratulations to the Minister and his officials on bringing forward this complex legislation. If what I have had to deal with over the past four or five days is anything to go by, I cannot imagine what it must have been like for the Minister over the past four or five months, but that is democracy. In fairness to the Minister he has taken on board the views of the various interest groups. The debate on the Bill was contentious at times but full credit is due to the Minister that the Bill has been passed by this House. It has been a good day's work.
Question put and agreed to.