Dáil Éireann debate -
Wednesday, 26 Mar 1997

Vol. 477 No. 1

Private Members' Business. - Equal Status Bill, 1997: Report Stage.

Minister for Equality and Law Reform (Mr. Taylor)

I move amendment No. 1:

In page 6, line 12, to delete "a near relative" and substitute "an adult".

At present family status is defined in the Bill as "having a natural, step or adopted child, fostering or being the guardian of a child, or living with and caring for a near relative". In the Employment Equality Bill family status means

"responsibility (a) as a parent or as a person in loco parentis in relation to a person under the age of 18, or (b) as a parent or the resident primary carer in relation to a person of or over that age with a disability which is of such a nature as to give rise to the need for care or support on a continuing, regular or frequent basis”.

I propose to change "near relative" to "an adult". This makes the definition broader than that in the Employment Equality Bill. The difference between the two definitions is supported by the different contexts. The definition in the Employment Equality Bill was drafted specifically for the employment context. It has an emphasis on the adult being cared for having a disability of a serious nature. This element would not be appropriate in the Equal Status Bill.

Dr. McDaid

I support this amendment. On Committee Stage I spoke on the changing role of the family and we put down an amendment in that regard. Does this amendment mean the Minister is accepting the term "an adult" as opposed to the word "partner"?

Ms Keogh

The widening of the definition is welcome.

Mr. Taylor

It is a broader definition. The existing definition of a "near relative" would include other adults but the adult now being cared for need not necessarily be a near relative. The broader definition is an improvement and broadens the application of the Bill.

Amendment agreed to.

Mr. Taylor

I move amendment No. 2:

In page 8, to delete lines 23 to 34 and substitute the following:

"(j) that one—

(i) in good faith has applied, or proposes to apply, for any determination or redress provided for in Part II or III and the other has not,

(ii) has attended, or proposes to attend, as a witness before the Authority, the Director or a court in connection with any investigation or proceedings under this Act and the other has not, or

(iii) opposes, or proposes to oppose, by lawful means an act which is unlawful under this Act,

(the `victimisation ground').".

This amendment brings the definition of victimisation into substantive alignment with the corresponding provision in section 39(2) of the Employment Equality Bill as passed by the Dáil. One of the changes I propose would bring within the terms of paragraph (j) the case of a person who, by lawful means, opposes a discriminatory act, for example, a member of the settled community who exhorts a service provider to cease discrimination against travellers. The second change deletes the existing subparagraph (iii) which deals with a situation that is not likely to arise.

Amendment agreed to.

Mr. Taylor

I move amendment No. 3:

In page 9, line 13, to delete "special treatment of facilities" and substitute "treatment or facilities".

This amendment removes errors from the present version of the Bill.

Amendment agreed to.

Acting Chairman

Amendment No. 4 is related to amendment No. 6. Amendment Nos. 4 and 6 will be taken together. Is that agreed? Agreed.

Mr. Taylor

I move amendment No. 4:

In page 9, to delete lines 15 and 16.

I propose moving section 5 from Part II to Part I of the Bill. Section 5, which provides for reasonable accommodation, is an elaboration of the concept of discrimination and should appear in the same Part as sections 3 and 4 which contain the other provisions as to what discrimination means for the purposes of the Bill.

Amendment agreed to.

Acting Chairman

Amendment No. 4b is related to amendment No. 4a and both amendments will be discussed together. Is that agreed? Agreed.

Mr. Taylor

I move amendment No. 4a:

In page 9, line 17, to delete "Subject to subsection (2), a" and substitute "A".

The purpose of these amendments is to make section 5(2) subject to section 5(1) and to section 10(2)(b) (iv) rather than vice versa, as in the present version of the Bill. Section 5(2) provides that a person with a disability can be refused if, because of the disability, he or she cannot comply with reasonable conditions relating to the goods or services in question. At present, this takes precedence over section 5(1) and over section 10(2)(b)(iv) which provide for the requirement of reasonable accommodation. However, it would be better if the requirement for reasonable accommodation, subject to undue difficulty, took precedence over the reasonable conditions to which subsection (2) might apply. That is the purpose of these amendments.

Amendment agreed to.

Mr. Taylor

I move amendment No. 4b:

In page 9, line 26, to delete "A" and substitute "Subject to subsection (1) and section 10(2)(b)(iv), a"

Amendment agreed to.

Mr. Taylor

I move amendment No. 5:

In page 9, line 34 to delete "without a disability" and substitute "generally".

It is not appropriate to set persons without a disability as the norm from which persons with a disability are regarded as deviating. The subsection will now simply state conditions that reasonably apply to persons generally. In addition to the above amendment, we wish to make section 5(2) subject to section 5(1) and to section 10(2)(b)(iv) rather than vice versa as at present.

Amendment agreed to.

Mr. Taylor

I move amendment No. 6:

In page 9, between lines 35 and 36, to insert the following:

"PART II

DISCRIMINATION AND RELATED ACTIVITIES".

Amendment agreed to.

Mr. Taylor

I move amendment No. 6a:

In page 13, between lines 11 and 12, to insert the following:

"(4) Notwithstanding the definition of `service' in section 2(1), paragraphs (c) and (d) of subsection (3) shall apply, so far as discrimination on the ground of race and on the age ground are concerned, in relation to discrimination under section 12(1) of the Employment Equality Act, 1997, in like manner as they apply in relation to subsection (2).".

Amendment agreed to.

Mr. Taylor

I move amendment No. 6b:

In page 13, lines 43, to delete "subject to section 5(2),".

Amendment agreed to.

An Leas-Cheann Comhairle

Amendments Nos. 7, 8, 19 and 21 are related and may be discussed together. Is that agreed? Agreed.

Mr. Taylor

I move amendment No. 7:

In page 14, line 33, to delete "28 days" and substitute "42 days".

The purpose of these amendments is to standardise appeal periods at 42 days. Parties to proceedings in the District Court on whether a club is a discriminating one will have 42 days to appeal to the Circuit Court against the District Court's order. The order shall not come into effect until the expiration of the 42 day period. In the same way, an appeal against a non-discrimination notice will be possible within 42 days as opposed to 28 days in the present version of the Bill. The non-discrimination notice will not come into effect until the 42 day period is up.

Dr. McDaid

This matter was discussed previously and there was some argument. However, the Minister has given a satisfactory explanation.

Amendment agreed to.

Mr. Taylor

I move amendment No. 8:

In page 14, line 36, to delete "28 day" and substitute "42 day".

Amendment agreed to.

Mr. Taylor

I move amendment No. 9:

In page 16, line 13, to delete "subsection (5)" and substitute "subsection (4) or (5)".

This is a technical amendment.

Amendment agreed to.

An Leas-Cheann Comhairle

Amendments Nos. 10, 10a and 11 are related and may be discussed together. Is that agreed? Agreed.

Ms Keogh

I move amendment No. 10:

In page 17, line 6, to delete "could reasonably be regarded as" and substitute "the victim considers it to be".

Unfortunately, I only received the considerable number of additional amendments just before the commencement of Report Stage so I have not had an opportunity to consider the Minister's amendments.

On the definition of sexual harassment, I am concerned that the Minister's proposal introduced an objective test of what acts or conducts a reasonable person would consider to be sexual harassment. The onus is still on the victim to show what a reasonable person would have thought. There should be a subjective test on behalf of the victim, which is why I have proposed this amendment. This will provide a subjective test and put the primary focus on the victim. Rather than the victim feeling further victimised, which sometimes happens, the harasser will be under scrutiny. I know the Minister has amended this section but I am not satisfied that the feelings of the victim are taken into consideration.

Mr. Taylor

Government amendment No. 11 covers the situation where the victim is treated differently by reason of his or her reaction to the relevant act, conduct or request. The section already covers the situation where such treatment could reasonably be anticipated. This brings the section into alignment with the Employment Equality Bill.

As regards Deputy Keogh's amendment, the words "could reasonably be regarded as" were included on Committee Stage to replace the reference to the "reasonable person." Parallel changes to the wording of the Employment Equality Bill and the revised wording of the two Bills has been welcomed in the House and among relevant interest groups.

The new wording allows for wide discretion as to what is to be considered when assessing reasonableness in the circumstances of a particular case and does not preclude consideration of the subjective experience of the complainant. Therefore, I regret I do not propose to accept this amendment.

In amendment No. 10a, I qualify the reference to "offensive, humiliating" by inserting the word "sexually". This aligns this section with the corresponding provisions of the Employment Equality Bill.

Ms Keogh

This is an important section and we debated it fully on Committee Stage. The Minister, to a fair extent, responded to the arguments made and amended the section. I am not totally happy but it is considerably better than it was.

Amendment, by leave, withdrawn.

Mr. Taylor

I move amendment No. 10a:

In page 17, line 6, after "as" to insert "sexually".

Amendment agreed to.

Mr. Taylor

I move amendment No. 11:

In page 17, line 7, after "where" to insert "the victim is or".

Amendment agreed to.

Amendment No. 12 not moved.

An Leas-Cheann Comhairle

Amendment No. 13 and amendment No. 1 to amendment No. 13 are related and amendment No. 14 is an alternative. Is it agreed they be discussed together? Agreed.

Mr. Taylor

I move amendment No. 13:

In page 19 to delete lines 31 to 47, in page 20, to delete lines 1 to 46 and in page 21, to delete lines 1 to 28 and substitute the following:

"PART III

ENFORCEMENT

22.—In this Part, unless the contrary intention appears—

`complainant' means a person by whom a case under section 23(1) is referred to the Director;

`equality mediation officer' and `equality officer' shall be construed in accordance with sections 38(4) and 38(5) of the Employment Equality Act, 1997;

`respondent' means a person who is alleged by a complainant in a case under section 23(1) to have engaged in prohibited conduct.

23.—(1) A person who claims that prohibited conduct has been directed against any person may, subject to this section, seek redress by referring the case to the Director.

(2) No investigation of a claim by the Director shall be made unless the Director is satisfied that—

(a) the complainant has, within two months after the prohibited conduct is alleged to have occurred, or where more than one incident of prohibited conduct is alleged to have occurred, within two months after the last such occurrence, in writing notified the respondent of the nature of the allegation, the remedy sought by the complainant in respect thereof and the complainant's intention to refer the matter to the Director if the complainant is not satisfied with the respondent's response to the allegation, and

(b) the respondent has not, within a reasonable time after the notification referred to in paragraph (a), responded to the complainant to the satisfaction of the complainant.

(3) Subject to subsection (4), a claim for redress in respect of prohibited conduct may not be referred under this section after the end of the period of six months from the date of the occurrence or, as the case may require, the most recent occurrence of the incident of prohibited conduct to which the case relates.

(4) If, on an application made by the complainant, the Director is satisfied that exceptional circumstances prevented the complainant's case being referred within the time limit in subsection (3)—

(a) the Director may direct that, in relation to that case, subsection (3) shall have effect as if for the reference to a period of six months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and

(b) where such a direction is given, this Part shall have effect accordingly.

24.—On the request of a complainant, a respondent shall, in such form and within such time limit as the Minister may by regulations prescribe, provide the complainant with information in relation to the alleged prohibited conduct that will enable the complainant to reasonably decide whether the matter should be referred to the Director or, where the matter has been so referred, to reasonably present the facts involved in the matter.

25.—The Director may dismiss a claim at any stage in the investigation where the Director is of the opinion that—

(a) the complainant does not have a sufficient interest in the subject-matter of the claim, or

(b) the claim has been made in bad faith or is frivolous or vexatious or relates to a trivial matter.

26.—(1) Where it appears to the Authority that—

(a) prohibited conduct—

(i) is being generally directed against persons, or

(ii) has been directed against a person who has not made a claim under section 23(1) in respect of the prohibited conduct and it is not reasonable to expect that the person will do so, or

(b) a person has contravened or is contravening section 14(1), 15(1) or 21 or a regulation made under section 19 or 20,

the matter may be referred by the Authority to the Director.

(2) Where a matter is referred to the Director under subsection (1) it shall be dealt with in the same manner and to the same extent as if—

(a) it were a claim referred to the Director under section 23(1),

(b) the Authority were the complainant and the person alleged to have engaged in the prohibited conduct or to have committed the contravention referred to in subsection (1)(b), as the case may be, were the respondent, and

(c) where the matter involves a contravention referred to in subsection (1)(b), the contravention were prohibited conduct.

(3) Where, on application to the High Court or the Circuit Court, the Authority satisfies the Court that a person has been determined to have—

(a) engaged in prohibited conduct, or

(b) contravened section 14(1), 15(1) or 21 or a regulation made under section 19 or 20,

and that there is a likelihood of a further similar occurrence of the prohibited conduct or contravention by the person, the Court may grant an injunction or such other relief as the Court deems necessary to prevent the further occurrence.

27.—(1) Subject to subsection (2), if, at any time after a case has been referred to the Director under section 23, it appears to the Director that the case is one which could be resolved by mediation, the Director shall refer the case for mediation to an equality mediation officer.

(2) If the complainant or the respondent objects to a case being dealt with by way of mediation, the Director shall not exercise his or her powers under this section but shall deal with the case under section 28.

(3) Mediation shall be conducted in private.

(4) Where a case referred under section 23 is resolved by mediation—

(a) the equality mediation officer concerned shall prepare a written record of the terms of the settlement;

(b) the written record of the terms of the settlement shall be signed by the complainant and the respondent;

(c) the equality mediation officer shall send a copy of the written record, as so signed, to the complainant and the respondent; and

(d) a copy of the written record shall be retained by the Director.

(5) If, after a case has been referred to an equality mediation officer it appears to the equality mediation officer the case cannot be resolved by mediation, the officer shall issue a notice to that effect to the complainant and the respondent.

(6) Where—

(a) a notice has been issued under subsection (5) with respect to a case, and

(b) within 28 days from the issue of that notice the complainant makes an application to the Director for the resumption of the hearing of the case, and

(c) a copy of that notice accompanies the application under paragraph (b),

the Director shall proceed or, as the case may be, continue to deal with the case under section 28.

28.—(1) Where a case which has been referred to the Director under section 23—

(a) does not fall to be dealt with by way of mediation under section 27, or

(b) falls to be dealt with under this section by virtue of section 27(6),

the Director shall investigate the case and hear all persons appearing to the Director to be interested and desiring to be heard.

(2) An investigation under this section shall be held in private.

(3) The Minister may by regulation specify—

(a) procedures to be followed by the Director in carrying out investigations (or any description of investigation) under this section; and

(b) time limits applicable to such investigations, including procedures for extending those limits in certain circumstances,

but before making any such regulations, the Minister shall consult the Director and the Authority.

(4) At the conclusion of an investigation under this section the Director shall issue a decision and, if the decision is in favour of the complainant, it shall provide for redress in accordance with section 30.

29.—If, in the course of an investigation under section 28, it appears to the Director that a respondent has failed to comply with section 24, the director may draw such inferences from the respondents failure as seem appropriate.

30.—(1) Subject to this section, the types of redress for which a decision of the Director under section 28 may provide are either or both of the following as may be appropriate in the circumstances:

(a) an order for compensation for the effects of discrimination; or

(b) an order that a person or persons specified in the order take a course of action which is so specified.

(2) The maximum amount which may be ordered by the Director by way of compensation under subsection (1)(a) shall be the maximum amount that could be awarded by the District Court in civil cases in contract.

(3) Where a claim is made by a person on behalf of an organisation described in section 3(1)(a)(ii) in respect of prohibited conduct directed against the organisation, any award of compensation in respect of the claim shall be paid to the benefit of the organisation.

31.—(1) Not later than 42 days from the date of a decision of the Director under section 28, the complainant or respondent involved in the claim may appeal the decision to the Circuit Court by notice in writing specifying the grounds of the appeal.

(2) In its determination of the appeal, the Circuit Court may provide for any redress for which provision could have been made by the decision appealed against (substituting the discretion of the Circuit Court for the discretion of the Director).

(3) No further appeal lies, other than an appeal to the High Court on a point of law.

32.—(1) Every decision of the Director under this Part shall be in writing and—

(a) if the Director thinks fit, or

(b) if any of the parties so request,

the decision shall include a statement of the reasons why the Director reached that decision.

(2) By notice in writing to the complainant and the respondent the Director may correct any mistake (including an omission) of a verbal or formal nature in a decision under this Part.

(3) If any person who participated in an investigation is not correctly identified in the resulting decision, the correction of that error shall be regarded as falling within subsection (2).

33.—(1) A copy of every decision of the Director under this Part shall be given to the complainant and the respondent and every such decision shall be published and a copy thereof made available for inspection at the office of the Director.

(2) Any reference in this section to a decision includes a reference to any statement of reasons included in the decision as mentioned in section 32(1).

(3) The contents of any document which is published or made available by virtue of this section shall be protected by absolute privilege.

34.—(1) If a person who is bound by the terms of a decision of the Director under this Part fails to comply with the terms of the decision, then, on an application under this section, the Circuit Court shall, subject to section 35, make an order directing the person affected to carry out the decision in accordance with its terms.

(2) If a person who is a party to a settlement to which section 27 applies fails to give effect, in whole or in part, to the terms of the settlement, then, on an application under this section, the Circuit Court may make an order directing that person to carry out those terms or, as the case may be, the part of those terms to which the application relates, but the Circuit Court shall not, by virtue of this subsection, direct any person to pay any sum or do any other thing which (had the matter been dealt with otherwise than by mediation) could not have been provided for by way of redress under section 30.

(3) An application under this section may not be made within 42 days of the date of the decision or the date of the written record of the settlement, as the case may be.

(4) An application under this section may be made—

(a) by the complainant;

(b) in a case where the Authority is not the complainant, then, by the Authority with the consent of the complainant if the Authority considers that the decision or settlement is unlikely to be implemented without its intervention.

(5) On an application under this section, the Circuit Court shall exercise its functions under subsection (1) or (2) on being satisfied—

(a) of the existence and terms of the decision or settlement, and

(b) of the failure by the person affected to comply with those terms.

(6) Without prejudice to the power of the Circuit Court to make an order for costs in favour of the complainant or the person affected, where an application is made by the Authority by virtue of subsection (4), the costs of the Authority may be awarded by the Circuit Court.

35.—(1) Where the Circuit Court makes an order under section 34(1), it may, if in all the circumstances it considers it appropriate to do so, include in the order the additional direction referred to in subsection (2).

(2) Where the order under section 34(1) relates to a decision requiring the payment of compensation to any person, the order may direct the respondent concerned to pay interest on the compensation at the rate referred to in section 22 of the Courts Act, 1981, in respect of the whole or any part of the period ending on the date of the order and beginning—

(a) 42 days after the date of the decision; or

(b) if it is later, on the date on which the compensation was required to be paid under the decision.

36.—(1) In this section—

`designated officer' means the Director, an equality officer or a person authorised in that behalf by the Director;

`material information' means information which a designated officer has reasonable grounds for believing to be relevant for the purpose set out in subsection (2).

(2) For the purpose of enabling information to be obtained which the Director may require to enable him or her to exercise his or her functions under this Part, a designated officer may do any one or more of the following:

(a) at all reasonable times, peaceably enter premises;

(b) require a person to produce to the designated officer any records, books, documents or other things which are in that person's power or control and which the designated officer has reasonable grounds for believing to contain material information, and to give the designated officer such information and access as the designated officer may reasonably require in relation to the contents of any such records, books, documents and other things;

(c) inspect and copy or take extracts from any such records, books, documents or other things;

(d) inspect any work in progress at any premises.

(3) The powers conferred by subsection (2) shall not be exercised in respect of a dwelling or any person, record, book, document or other thing in a dwelling unless the Minister (or an officer of the Minister authorised by the Minister in that behalf) certifies in writing that there are reasonable grounds for believing that there is in the dwelling information which is material to the investigation of a case, or the consideration of an appeal, under this Part.

(4) If a judge of the District Court is satisfied by information on oath of a designated officer that there is reasonable cause for suspecting that any records, books, documents or other things containing material information are to be found at any premises, the judge may issue a search warrant under this section.

(5) A search warrant issued under this section shall be expressed and operate to authorise a named designated officer, accompanied by such other persons as the named designated officer thinks necessary, at any time or times within one month from the date of issue of the warrant, on production if so requested of the warrant,

(a) to enter the premises named in the warrant, if necessary by force;

(b) to search those premises; and

(c) to exercise any such power as is described in subsection (2)(b) or (c) in relation to persons and records, books, documents or other things found at the premises.

37.—(1) For the purpose of enabling the Director to exercise his or her functions under this Part, the Director—

(a) may require a person who, in the opinion of the Director is in possession of, or has in his or her power or control, any information relevant to the exercise of those functions to furnish that information to the Director; and

(b) where appropriate, may require such person to attend before the Director for that purpose,

and the person shall comply with the requirement accordingly.

(2) A requirement under subsection (1) may specify a time and place at which information is to be furnished or a person is to attend, and if no such time or place is specified in the requirement, the person to whom the requirement is addressed shall comply with it as soon as is reasonably practicable.

(3) A person required to attend before the Director under subsection (1)(b)—

(a) shall answer fully and truthfully any question put to him or her by the Director (other than a question tending to incriminate the person), and

(b) if so requested by the Director, shall sign a declaration of the truth of his or her answers to any such question.

38.—(1) If it appears to the Director or an equality officer that a person has failed to comply with—

(a) a requirement under section 36(2)(b), or

(b) a requirement under section 37(1),

then, according as the case may require, the Director or the equality officer may apply to the Circuit Court for an order under this section.

(2) Subject to subsection (3) if, on an application under this section, the Circuit Court is satisfied as to the failure of the person concerned to comply with the requirement in question, the Circuit Court may make an order requiring that person to comply with the requirement.

(3) If, on an application under this section, the Circuit Court is of the opinion that the requirement in question purports to require the person concerned—

(a) to produce any record, book, document or other thing, or

(b) to furnish any information,

for which that person is entitled to claim legal professional privilege, the Circuit Court shall set aside the requirement.

39.—(1) In this section `information' includes any record, book, document or other thing in which the information is contained.

(2) No information furnished to, or otherwise acquired by the Director or any other person, by virtue of sections 36 to 38, or otherwise in the course, or for the purposes, of any investigation, mediation or hearing under this Part, shall be published or otherwise disclosed except—

(a) for the purposes of such an investigation, mediation or hearing,

(b) on the order of the High Court or the Circuit Court,

(c) with the consent of the person furnishing the information and of any other person to whom the information may relate,

(d) in a decision of the Director published or made available under section 33 and to which the disclosure of the information is relevant, or

(e) for the purposes of an application under section 38.

(3) A person who discloses information in contravention of subsection (2) shall be guilty of an offence.

40.—(1) A person who—

(a) obstructs or impedes the Director or an equality officer in the exercise of powers under this Part, or

(b) fails to comply with a requirement of the Director or an equality officer given under this Part,

shall be guilty of an offence.

(2) A reference in subsection (1) to an equality officer includes a reference to a person authorised as described in the definition of `designated officer' in section 36(1).

(3) In any proceedings for an offence under this section, a document purporting to be certified by the Director and relating to the circumstances in which the offence is alleged to have occurred shall be received as prima facie evidence of the facts stated therein.

41.—(1) Where a case is referred to the Director and, at any time after the expiry of one year from the date of the reference, it appears to the Director that the complainant has not pursued, or has ceased to pursue, the reference, the Director may dismiss the reference.

(2) As soon as practicable after dismissing a reference, the Director shall give notice in writing of that fact to the complainant and the respondent.

(3) Where a reference is struck out under this section, no further proceedings may be taken in relation to that reference, but nothing in this section prevents a person from making a further reference in relation to the same matter (subject to any applicable time limit).".

Amendment No. 13, despite its length, does not represent a fundamental change to the provisions of the Bill. The approach taken at present in section 22 is to apply the enforcement mechanisms of the Employment Equality Bill to equal status cases subject to certain modifications and exceptions. This approach may not be fully transparent and I consider it preferable for the convenience of all those who will have to refer to this legislation in the future to elaborate the redress procedures fully in this Bill.

This amendment spells out what is already contained in sections 22 and 23. It does not alter the enforcement mechanisms of this Bill, except in relation to partnerships. The amendment dealing with partnerships is to ensure that in cases under section 9 to which the EU directive on self-employed activity applies there will be no upper limit on compensation.

If the only redress available to a person alleging a breach of section 9 in this area were to be via the director of equality investigations, there would be an upper limit on the compensation which could be awarded by the director, namely that which applies in contract cases in the District Court. The provision I now propose to insert would give an aggrieved party an option of taking an action in the courts for whatever level of compensation her or she seeks.

Mr. Taylor

I move amendment No. 1 to amendment No. 13:

In section 23, after subsection (4) to insert the following:

"(5) Where prohibited conduct under section 9 has been directed against a person in circumstances to which Council Directive 86/613/EEC, on the application of the principle of equal treatment between men and women engaged in an activity, including agriculture, in a self-employed capacity, and on the protection of self-employed women during pregnancy and motherhood, is relevant, and no complaint in relation to the prohibited conduct has been referred to the Director under this section, the prohibited conduct may be made the subject of civil proceedings for damages, injunctive relief or other remedy in a court but where any such proceedings are commenced, no investigation or decision in respect of the prohibited conduct shall be made by the Director under this Act.".

Amendment No. 1 to amendment No. 13 agreed to.

Amendment, as amended, agreed to.

Amendment No. 14 not moved.

Mr. Taylor

I move amendment No. 14a:

In page 21, after line 43, to insert the following:

" `equality of opportunity', save in section 47, includes reference to any act that is in contravention of an equal remuneration term or equality clause under the Employment Equality Act, 1997;".

Amendment agreed to.

Mr. Taylor

I move amendment No. 15:

In page 22, line 15, after "male and" to insert "at".

Amendment agreed to.

Mr. Taylor

I move amendment No. 15a:

In page 23, line 18, after "issues" to insert "including issues related to the experience and circumstances of groups who are disadvantaged by reference to gender, marital status, family status, sexual orientation, religion, age, disability, race, colour, nationality, ethnic or national origin or membership of the travelling community".

Amendment agreed to.

Ms Keogh

I move amendment No. 16:

In page 23, line 19, to delete "or" and substitute the following:

"(iv) gender discrimination issues,

(v) issues related to the experience and circumstances of categories of persons who have been disadvantaged by discrimination, or".

I am concerned that the Authority should have available to it people with expertise and knowledge of gender discrimination issues. On Committee Stage the Minister said that he sympathised with this view and that he would return to the matter on Report Stage. Has he considered it further?

Mr. Taylor

I indicated on Committee Stage that, while I considered the existing provisions of the section to be appropriately balanced and capable of accommodating a wide range of interests, I would look at the matter again. The amendment I am proposing will provide for representation on the Authority of persons with knowledge of both gender issues and the interests of persons disadvantaged by discrimination. This wording reasonably meets the Deputy's concerns. In the circumstances I ask her to withdraw the amendment.

Ms Keogh

I am pleased the Minister has listened to the arguments put forward — he has been reasonable about various aspects of the Bill — and is accepting the spirit of the amendment.

Amendment, by leave, withdrawn.

An Leas-Cheann Comhairle

We now come to amendment No. 17. Amendment No. 18 is related. It is suggested that we take amendments Nos. 17 and 18 together.

Mr. Taylor

I move amendment No. 17:

In page 27, line 15, to delete "15" and substitute "15 (1)".

Amendment agreed to.

An Leas-Cheann Comhairle

We now come to amendment No. 17a. Amendment No. 18a is related. It is suggested that we take amendments Nos. 17a and 18a together.

Mr. Taylor

I move amendment No. 17a:

In page 27, line 16, to delete "section 10 (1)" and substitute "section 10".

Amendment agreed to.

Mr. Taylor

I move amendment No. 18:

In page 29, line 1, to delete "15" and substitute "15 (1)".

Amendment agreed to.

Mr. Taylor

I move amendment No. 18a:

In page 29, line 2, to delete "section 10 (1)" and substitute "section 10".

Amendment agreed to.

Mr. Taylor

I move amendment No. 19:

In page 29, line 46, to delete "28 days" and substitute "42 days".

Amendment agreed to.

Mr. Taylor

I move amendment No. 20:

In page 30, to delete lines 1 to 5 and substitute the following:

"(2) Where the non-discrimination notice relates to any matter under this Act, the appropriate court referred to in subsection (1) is the District Court and, where it relates to any matter under the Employment Equality Act, 1997, the appropriate court is the Labour Court.".

The purpose of this amendment is to distinguish clearly between non-discrimination notices relating to the Employment Equality Bill which may be appealed to the Labour Court and those under this Bill which may be appealed to the District Court.

Amendment agreed to.

Mr. Taylor

I move amendment No. 21:

In page 30, line 8, to delete "28 day" and substitute "42 day".

Amendment agreed to.

Mr. Taylor

I move amendment No. 21a:

In page 30, line 36, to delete "the" and substitute "a".

Amendment agreed to.

An Leas-Cheann Comhairle

We now come to amendment No. 22. Amendments Nos. 23 and 24 are related. It is suggested that we take amendments Nos. 22, 23 and 24 together.

Mr. Taylor

I move amendment No. 22:

In page 31, lines 3 and 4, to delete "in proceeding with a reference or application to which this section applies" and substitute "in taking proceedings for redress under the Employment Equality Act, 1997, or this Act, or an application under section 10(3) of this Act".

The purpose of these amendments is to ensure the Authority is given broad scope to assist persons in actions under the Bill and the Employment Equality Bill. They are intended to make it clear that such assistance may be given not just with an initial reference but at any point in the proceedings. They will also ensure that assistance can be given in Circuit Court proceedings as well as proceedings before the director or the Labour Court.

Dr. McDaid

I presume the definitions of "complainant", "respondent" and "equality" have not been used previously in legislation.

Mr. Taylor

They have been included for the purposes of this Bill.

Dr. McDaid

The new section 24 states: "On the request of a complainant, a respondent shall, in such form and within such time limit as the Minister may by regulations prescribe, provide the complainant with information..." This will cause problems in certain areas. I cite as an example large licensed premises, particularly those under new ownership, where large numbers are barred on a weekly basis. It may be impossible for a respondent after a period of two months to remember many of the complainants. Would it be possible to include licensed premises in a special category whereby a complainant would have to lodge a complaint within a much shorter period?

Mr. Taylor

This issue arises under an earlier amendment. I understand the point the Deputy is making and accept it is a difficult area to deal with. The views of two sides have to be taken into account. One has to have some sympathy for retailers, say, publicans. They have made the reasonable point that they would require notice within a period that would enable them to recall an incident that had occurred. That is understandable and I accept it. On the other hand, the disgruntled person who feels he or she has been discriminated against would need time to consider his or her position and find out whether he or she has an entitlement to bring an action. Many people do not know that this legislation exists. He or she would have to have reasonable time in which to make inquiries and arrange for the issue of a written notice, as required, in time. This is a stringent requirement.

On balance, the two-month period prescribed is reasonable from the point of view of both sides of the equation. When one takes into account that limitation periods for the bringing of actions in other cases are a great deal longer than two months — three years is a normal limitation period — a period of two months is reasonable in the context of the new remedies provided for in the legislation. If one was to reduce it to one month, many people who should reasonably have the right to bring a discrimination case would be cut out and may suddenly find themselves stymied and have their rights removed. However, if the period was six months a publican may say he had forgotten the incident and there would be no record. One is faced with the dilemma of trying to strike a reasonable balance. I do not know if Deputies are suggesting another period would be better, but to extend the period would be to go too far in one direction and to curtail it would be to go too far in the other. The period proposed is reasonable, on balance, and I hope Deputies agree with it.

Ms Keogh

Amendment No. 24 proposes to insert "and at any stage" after the word "discretion". Is the Minister saying once a claim is made it will be relatively open ended?

Mr. Taylor

Is the Deputy referring to the two month notice period?

Ms Keogh

Yes.

Mr. Taylor

There is still a limitation period.

Ms Keogh

Under the amendment, the authority may at its discretion, and at any stage, provide assistance to a person.

Mr. Taylor

Is the Deputy referring to the notice period referred to by Deputy McDaid or to the amendments?

Ms Keogh

I am referring to amendment No. 24. On Committee Stage we did not reach complete agreement on the length of time and I withdrew my amendment. Under amendment No. 24 the authority may at its discretion, and at any stage, provide assistance to the person. As this is open ended the two month period will not apply.

Mr. Taylor

Under amendment No. 24 it can provide assistance at any stage while proceedings are under way.

Dr. McDaid

In some cases it may take people a long time to recover from allegations made against them. Will the Minister clarify that in the event of a person being unable to respond to a claimant it will be left to the director to decide? In some cases it might be in the interests of the respondent not to remember an incident. It might be worthwhile providing for a shorter period in some cases.

Mr. Taylor

The director will not decide whether a publican should remember, rather he will give his decision on the claim taking all the evidence, factors and circumstances into account. If a retailer says he does not remember an incident and as far as he is concerned it did not happen, then the director has to decide whether the claim is genuine and whether the incident happened. This will depend on the results of the investigation to be carried out by the director. Taking all factors into account, the director will have to make up his or her mind on whether the claim is genuine, whether the discrimination took place and whether the publican remembers it.

Amendment agreed to.

Mr. Taylor

I move amendment No. 23:

In page 31, lines 6 and 7, to delete "a claim referred to the Director or the Court under sections 41(1) to (3) of" and substitute "any proceedings under and within the meaning of".

Amendment agreed to.

Mr. Taylor

I move amendment No. 24:

In page 31, line 16, after "discretion" to insert ",and at any stage,".

Amendment agreed to.

Mr. Taylor

I move amendment No. 25:

In page 31, line 30, after "discrimination" to insert ", within the meaning of paragraph (a) of the definition of `discrimination' in section 24".

As the Employment Equality Bill enables the authority to draw up codes of practice in relation to that Act this amendment limits the powers under this section to matters arising under the Equal Status Bill.

Amendment agreed to.

Mr. Taylor

I move amendment No. 25a:

In page 33, between lines 15 and 16, to insert the following:

"(2) The Minister may by regulations specify, in cases where provision is not otherwise made in that behalf by regulations under this Act or the Employment Equality Act, 1997—

(a) procedures to be followed by the Director or, as the case may be, the Labour Court, in carrying out functions under this Act or the Employment Equality Act, 1977; and

(b) time limits applicable to the carrying out of such functions, including procedures for extending those limits in certain circumstances;

but before making any such regulations, the Minister shall consult with the Authority and the Director: provided that in the case of any such regulations relating to the functions of the Labour Court, the Minister shall, in place of consulting with the Director, consult with the Labour Court and obtain the consent of the Minister for Enterprise and Employment.".

Amendment agreed to.

Mr. Taylor

I move amendment No. 26:

In page 33, between lines 22 and 23, to insert the following:

"(3) Any regulation made under this Act may contain such consequential, supplementary and ancillary provisions as the Minister considers necessary or expedient.".

This amendment corresponds with section 3(5) of the Employment Equality Bill and is intended to avoid any anomalies which might otherwise arise.

Amendment agreed to.

Mr. Taylor

I move amendment No. 27:

In page 34, between lines 20 and 21, to insert the following:

"(4) Notwithstanding subsection 10(4) of the Petty Sessions (Ireland) Act, 1851, summary proceedings for an offence under any provision of this Act may be instituted within 12 months from the date of the offence.".

This amendment aligns the provisions of this section with section 63(4) of the Employment Equality Bill.

Amendment agreed to.

Mr. Taylor

I move amendment No. 27a:

In page 34, line 29, to delete "under this Act".

This is a technical amendment.

Amendment agreed to.

Mr. Taylor

I move amendment No. 27b:

In page 34, line 36, after "the" to insert "State that is operated by a person who has a principal place of business or ordinary place of residence in the".

Amendment agreed to.

Mr. Taylor

I move amendment No. 28:

In page 35, between lines 1 and 2, to insert the following:

60.—Section 74 of the Employment Equality Act, 1997, is hereby repealed.".

This is a technical amendment. Section 74 of the Employment Equality Bill amends the Employment Equality Act, 1977, which is repealed by this Bill.

Amendment agreed to.

Bill reported with amendments and received for final consideration.

Question proposed: "That the Bill do now pass".

Minister for Equality and Law Reform (Mr. Taylor)

This is an historic day for the nine categories of people being accorded protection under the Bill which deals primarily with the extremely important question of access to goods and services, education and premises. Many groups, for example those dealing with disabled people, have been waiting a long time for this measure. It is a matter of regret that it has taken so long to bring the Bill before the House. I am pleased to have been a member of the Government which initiated this very important measure which is being looked at closely by disability organisations, women's organisations and people of different sexual orientation in the context of age discrimination, race, colour and membership of the travelling community. For the first time people in these categories are being given rights of redress.

This is an historic day, and when history comes to be written it will be looked on with high regard. When the Bill completes the Seanad process we can proudly say this country has a scheme of equality legislation in place that is unequalled anywhere in Europe or perhaps the world. That is something of which this Oireachtas can be justly proud.

I want to express my thanks and appreciation to my colleagues opposite for their encouragement and support in the passage of this legislation. I acknowledge the hard work of the officials in my Department who worked long hours, into the night on occasion, to have the measure ready for processing by the Dáil. I apologise to my colleagues opposite for the rushed manner in which some of the late amendments came about. That was unavoidable in the circumstances, but I very much appreciate their understanding and forbearance in that regard.

Dr. McDaid

As a nation we should be justly proud that these two legislative measures have now been passed by both Houses of the Oireachtas, and I congratulate the Minister in that regard. I also congratulate the Minister and the staff in his Department for accepting many of the amendments tabled by the Opposition. I agree with the Minister that there was consensus on the Bill.

I want to pay tribute to my predecessor in this area, Deputy Woods, who dealt with the more contentious aspects of the Bill——

Mr. Taylor

I would like to be associated with those comments.

Dr. McDaid

——at a time when it was a political issue and when various groups were concerned about certain sections of the Bill. In the main we avoided turning it into a political issue and that is to the credit of all concerned, including Deputy Woods.

This is probably the last opportunity I will have to face the Minister across the House on this legislation — our other Bills will be dealt with by different Ministers. I appreciate the help given to me by the Minister's officials in regard to the Bill, which I came to at a late stage. Those of us on this side of the House were happy to facilitate the passage of this legislation through the House.

Ms Keogh

It is a coincidence that the Minister put the final touches to the Equal Status Bill in the other House earlier today, while we are now reaching the final stages of the Employment Equality Bill. He must be proud of that and we should give credit where credit is due. I welcome the wide consensus in relation to this and the other legislation. The detailed analysis of the Bill was done in an effort to bring forward this new and far reaching legislation, and I commend the Minister and his officials on its production.

Contentious issues arose during the debate on the Bill and it was difficult to arrive at a satisfactory conclusion. Notwithstanding the fact that nothing is ever perfect, the Minister went through every possible process to ensure a consensus was reached. I thank him for accepting Opposition amendments because it can be frustrating if an Opposition Member, who works hard on legislation, thinks the Minister is not listening. That certainly cannot be said about this Minister. We may not have agreed on everything but he was prepared to listen and come back with appropriate amendments. I thank him for that.

The Minister apologised for the late introduction of some amendments. In normal circumstances I would object to that but everybody accepted that time was not on our side and some issues needed to be tidied up. We can all appreciate the reasons for that. I know the Minister's officials worked hard to have the Bill ready for the stage we are at today. I thank the various officials who have been helpful to me. We can feel proud of this legislation which goes beyond the boundaries set by other countries. We have come from behind in that respect. The political will existed to introduce this legislation and I am glad the Minister has brought the Bill to fruition. I hope it will be implemented as soon as possible.

Question put and agreed to.

Sitting suspended at 2.05 p.m. and resumed at 2.30 p.m.