Employment Equality Bill, 1997 [ Seanad ]: Second Stage.

I move: "That the Bill be now read a Second Time. "

The purpose of the Bill is to outlaw discrimination on nine distinct grounds — gender, marital status, family status, sexual orientation, religion, age, disability, race and membership of the travelling community. The scope of the Bill is comprehensive and deals with discrimination in work related activities from vocational training to access to employment, equal pay for work of equal value and employment conditions generally, including training, work experience and advancement within employment. The Bill, when enacted, will give Ireland one of the most modern employment equality codes in Europe.

Deputies will be aware of the fate of the Employment Equality Bill, 1996. That Bill passed all Stages in both Houses of the Oireachtas a year ago. The entire Bill was referred to the Supreme Court by the President in a reference under Article 26 of the Constitution. On 15 May 1997, the Supreme Court held that three provisions of the Bill were repugnant to the Constitution. On taking office, priority was given to this aspect of the equality agenda, to examining the constitutional issues raised in the judgment and to returning the Bill, appropriately amended, to the Oireachtas.

Ironically, the Bill before the House has two distinct advantages over other Bills which may come before the House in the current session. First, the Bill is almost identical in its provisions to the Employment Equality Bill, 1996, which was considered by the previous Dáil and Seanad within the last 15 months. I hope that the recency of the Dáil debate, even if the composition of the House has changed, will facilitate examination of the Bill. Second, the Bill has been examined thoroughly by the Supreme Court, particularly as regards a range of key and controversial provisions, and has been found constitutionally sound except for the three provisions I mentioned. I hope that these facts will set a backdrop for balanced and informed deliberations in the House.

The Bill was found by the Supreme Court to contain three provisions which were repugnant to the Constitution. Two of these provisions are of a technical nature and were amenable to satisfactory redrafting in the Bill which is before the House. The third provision which the Supreme Court found to be unconstitutional, that of reasonable accommodation for people with disabilities, raises profound issues, both legally and politically, about the scope available to legislators to deal with this socially important concept.

The 1996 Bill required an employer to make a reasonable accommodation for an employee with a disability unless the cost to the employer of providing the reasonable accommodation gave rise to undue hardship. The Supreme Court found that this provision amounted to an attack on the property rights of the employer under Article 43 of the Constitution. The advice which has been received and the subsequent changes made to the Bill allow for retention of the disability ground in the Bill. The Bill defines disability to include the absence of bodily or mental faculties, having chronic disease, whether manifest, and a wide range of learning and personality conditions. The implication of the Supreme Court judgment is that an employer, or a prospective employer, may be obliged by law to provide a reasonable accommodation to an employee with a disability.

However, the employer cannot be similarly obliged to bear the costs of providing such reasonable accommodation. The Bill requires an employer to provide special treatment and facilities for a person with a disability, unless the cost of such provision to the employer is more than a nominal cost. In considering the total costs of any provision, State supports for workplace adaptation and equipment will be taken into account as well as any cost borne by the employer. The Commission on the Status of People with Disabilities has recommended the preparation of a disabilities Bill. The options for developing proposals for such a Bill are being examined in my Department. There is an opportunity to revisit the question of statutory provision for reasonable accommodation in the context of specific disabilities legislation.

The Bill addresses the constitutional issues raised in the Supreme Court judgment about the disability ground in a fair and constructive way. I am well aware also of a high level of concern, evident both in the Seanad debate on the Bill and through representative groups, that the Bill as drafted may not go far enough to ensure the rights of people with disabilities. The view put to me is that the text of the Bill may stop short of the optimum provision that could be made in relation to reasonable accommodation, while at the same time respecting the terms of the Supreme Court judgment in the matter. This proposition is being carefully examined. I hope that some advance can be made that will satisfy representative groups as well as constitutional requirements. However, I must await the outcome of the examination before it will be possible to say whether any change to the existing provision is legally practicable.

It is important to recognise that the Bill, as it relates to people with disabilities, represents an important step towards ensuring that people with disabilities will in future be able to exercise their right to participate on an equal basis with other employees in the world of work. Research shows that households headed by people who are unable to work, due to illness or disability, are one of the groups in our society most likely to encounter poverty and experience basic deprivation. It is estimated that the unemployment rate for people with disabilities in this country is as high as 80 per cent. There are a variety of reasons for this unacceptably high level of unemployment among people with disabilities. I hope the protection offered by this Bill, when it becomes law, will have a positive impact in reducing this figure and in increasing the awareness among employers of the availability of a highly motivated and reliable cadre of actual and potential employees, whose disabilities are entirely incidental to their value as responsible and effective workers.

The Employment Equality Bill, 1997, outlaws discrimination, not only against people with disabilities, but against eight other categories of people. More than 20 years ago, the Anti-Discrimination (Pay) Act, 1974 and the Employment Equality Act, 1977, outlawed discrimination against women. These Acts, arising from developments in EU labour law directives, sought to bring about a change for the better in the behaviour of employers, mainly towards women employees. The Acts have helped to change the shape and nature of the workforce in a fundamental way.

We are again witnessing a qualitative shift in the nature of EU provision in the area of social protection. The draft Amsterdam Treaty gives the Community a clear basis for acting to combat discrimination, both in employment and in the provision of goods, facilities and services, on grounds of sex, racial or ethnic origin, religion, disability, age and sexual orientation. This Bill will in time improve the position of other groups in the workforce, including people with disabilities, members of the traveller community, older workers, people of minority races and other groups covered by the Bill. Equal status legislation, which is due for publication later this year, will provide protection on the same nine grounds for discrimination in the provision of goods, services and facilities.

The draft Amsterdam Treaty also enshrines significant new provisions which will impact positively on the development of gender equality at work. In addition to provision for equal pay for equal work or work of equal value, a right already enshrined in Article 119 of the existing treaty, specific and broadly framed provision is made, for the first time, for the adoption of measures to ensure the application of the principle of equal opportunities and equal treatment for men and women. There is also provision for measures which give particular advantages to one sex to help overcome disadvantage in working life or to make it easier for that sex to pursue a vocational activity. This provision gives clear recognition to the concept of positive action at the level of the treaty and is geared to address the confusion that has existed about the legality and scope for such measures, since European Court of Justice judgments in the Kalanke and Marschall cases. Following ratification of the Amsterdam Treaty, the Commission can be expected to bring forward proposals for the codification of EU law in the area of positive action.

Allied with these developments at EU level, there is evidence of a marked shift in labour market policies towards enhancing women's participation in the labour market on an equal basis. The Luxembourg Jobs Summit of 21 November 1997 took an important step in this regard by making the promotion of equal opportunities between women and men one of the four pillars of the 1998 guidelines for employment. The three other pillars are boosting entrepreneurship, enhancing the employability of the unemployed and creating an adaptable workforce. A significant element in Ireland's employment policies between now and the year 2000 will be the development of a national infrastructure for childcare. Partnership 2000 commits the Department of Justice, Equality and Law Reform to developing a strategy for the delivery of childcare with other interests and to devising a national framework for the development of the childcare sector. Work has commenced on this project and it is expected to be completed during the life of the partnership.

These developments are taking place EU wide against a backdrop of demographic projections for Europe which show an ageing population profile well into the next century. An EU Commission report in 1997 predicted that, from about 2010 onwards, the proportion of those in the higher age range of the working population aged 55 to 64 years would exceed those aged 20 to 29 years. With a declining working age population, it is clear that there will be more employment opportunities in the labour market and that increasing numbers of these opportunities will be taken by women.

The process is already in train. During the past 25 years there has been massive growth in the numbers of women in the workforce. Between 1971 and 1996, the number of women in the workplace increased by 212,000, reaching 488,000 in 1996. The growth in the number of women at work has accelerated in recent years. For example, the growth in women in the workplace in the five years between 1991 and 1996, at 102,000, almost equalled the growth of women's employment in the previous 20 years. The most recent labour force survey published by the Central Statistics Office in October last year estimates that the number of women at work exceeded 512,000. Women now account for four out of every ten people at work.

These changes are particularly marked in the case of married women. In 1971, only 14 per cent of the women in the workforce were married. Today, approximately half the female workforce is married. These changes have brought about a significant shift in the structure of the world of work and have led to a growing awareness of the need to reconcile work and family life, to safeguard competitiveness and the effectiveness of enterprises, while permitting both women and men to devote a sufficient amount of time to their family responsibilities.

While women have steadily increased their participation in the workforce, they have not been equally successful in attaining positions at the higher levels of the professions or in the organisations in which they work. For example, in 1994 women represented 35 per cent of medical and 46 per cent of dental staff in health boards, but only 20 per cent of medical consultants employed by the health boards were women. There is also a continuing trend for women to congregate in the professions and industrial sectors where low pay has traditionally been the norm.

The challenge now is to put in place measures that will help women to build on the gains they have already secured in the labour market. This Bill will encourage a more proactive approach to tackling the present segregation of women in the labour market which, as we have seen, occurs both on a sectoral basis and vertically within sectors. The new Equality Authority has been charged in the Bill with statutory powers to conduct equality audits, both in employment generally and in particular sectors, so that progress towards equality can be reviewed and action plans put in place to achieve equal opportunities. I would like to see these powers utilised to foster a consciousness among good employers of the need to work towards equal opportunities in practice. The Bill will also allow employers, who wish to do so, to put in place positive action measures geared towards the removal of existing inequalities which affect women's opportunities for access to employment, training and promotion.

A key issue addressed in this Bill is the question of age discrimination. Traditionally, this kind of discrimination has been a feature of the labour market. A brief perusal of the "situations vacant" section of our daily papers will confirm that many firms have a strong preference for recruiting younger workers. There may have been a sound underlying rationale for this preference in a society where skill lasted a lifetime and recruitment to a big commercial or public service institution offered a "job for life". Structural change that has been taking place in the labour market no longer supports such unthinking discrimination, either on grounds of economics or natural justice.

The world of work is changing out of all recognition. The pace of this change is fast and can be expected to gather momentum. The Department of Enterprise, Trade and Employment's White Paper on Human Resource Development estimates that in ten years' time 80 per cent of today's technology will have been replaced but 80 per cent of today's employees will still be in the workforce. The growth areas for employment will be in labour intensive services and in knowledgebased, high-tech sectors such as telecommunications, software and data processing. The inescapable fact is that workers today are more likely to face redundancy and the task of re-integration into the workforce than would have been the case a generation ago. The interests of social justice dictate that older workers should not continue to suffer systematic disadvantage in the labour market as a result of the application of outmoded or discriminatory criteria for selection for employment or training. One important policy aim of the Bill is to change this kind of behaviour in the interest of social justice as well as from a public policy perspective.

Age barriers to employment are EU-wide. The European Foundation for the Improvement of Living and Working Conditions has identified age barriers to employment in a number of EU member states. Some member states with population profiles older than ours have begun to rethink traditional policies that have tended to regard workers over 50, or even younger, as expendable. As a result, there is a growing recognition that older workers often represent highly skilled labour and valuable know-how. The research supports the view that these workers form a large pool of experienced, reliable and flexible employees.

We are fortunate in Ireland to have an educated and well motivated working population. Irish people have shown themselves to be innovative, hardworking and determined to succeed in whatever enterprise they are engaged. Success in today's increasingly competitive international, commercial arena involves making the fullest use of the talents of all employees, without regard to work irrelevant characteristics such as age, sex, disability, sexual orientation, religion or race. Enterprises that succeed in tapping the talents and skills of capable and flexible workers will inevitably succeed and have more talent at their disposal. Enterprises which ignore the skills of some workers, because of a traditional world view and outdated concepts of human resource management and motivation, may find themselves falling behind, resulting in the enterprise and its employees ultimately suffering the consequences.

Apart from the need for economic success we must consider the consequences of marginalisation. Employment equality legislation is one important way in which we can help redress disadvantage. I am aware this Bill alone will not eliminate inequality or create a perfect society overnight. That task will require proactive measures over a longer period.

However, the Bill is a key initiative in the development of a more equal society. It also lays down a marker for the future. Today we are addressing these issues in the realm of employment only, but we are working towards bringing forward a new Equal Status Bill later in the year which will address the whole question of equality of opportunity in a much wider context.

The Bill is divided into seven Parts as follows: Part I contains standard and technical provisions; Part II sets out the prohibited discriminatory grounds and establishes the scope of the Bill; Part III deals with discrimination on grounds of gender and gives effect to EU law in this area; Part IV deals with discrimination on the eight grounds other than gender; Part V provides for the establishment of the Equality Authority which will subsume the present Employment Equality Agency; Part VI provides for equality reviews and action plans and for a review of legislation by the Equality Authority; Part VII provides means of redress and compensation for persons who may have suffered discrimination.

Part I, comprising sections 1 to 5, provides in section 2 for definitions, the powers to make orders and regulations in section 3, expenses in section 4, and repeal of the Anti-Discrimination (Pay) Act, 1974, and the Employment Equality Act, 1977 in section 5.

Part II, comprises sections 6 to 17. Section 6 sets out the grounds on which discrimination is prohibited. The scope of the Bill is also established in this Part. Section 8 outlaws discrimination in relation to access to employment, conditions of employment, training or experience, promotion or re-grading or classification of posts. Section 10 prohibits the publication or display of discriminatory job advertisements. Section 11 prohibits discrimination by employment agencies. Section 12 prohibits discrimination by providers of vocational training. Section 13 prohibits discrimination by trades unions, employer organisations, professional bodies, trade associations and by any body which controls entry to or the carrying on of a profession, vocation or occupation. The procurement or attempted procurement of discrimination is prohibited by section 14. The extent of the liability of an employer or other person for actions of employees and other agents is set out in section 15.

Part III, comprising sections 18 to 27, deals with discrimination on the gender ground and gives effect to EU law in this area. Sections 19 and 20 provide an entitlement to men and women to equal remuneration in respect of like work where both are employed by the same or an associated employer. Discrimination in relation to other conditions of employment is prohibited in sections 21 and 22. Section 23 contains a definition of sexual harassment and explicitly provides that sexual harassment amounts to discrimination.

Section 24 allows for positive action to eliminate the effects of past discrimination. It is a broadly couched provision and may be interpreted to include all forms of positive action, subject only to any limitation imposed by European Court of Justice case law. Sections 25 to 27 allow exemptions from the principle of equal treatment. These exemptions include an exemption for the purposes of authenticity in entertainment; an exemption for certain jobs abroad; an exemption for special advantageous treatment of women in connection with pregnancy, maternity and adoption; an exemption for personal services, such as the care of an elderly or incapacitated person. There are limited exemptions for the Garda Síochána and the prison service for purposes related to privacy and decency; the control of violent individuals and riot situations; and for gender-based height requirements.

Part IV, consisting of sections 28 to 37, prohibits discrimination on any of the grounds, other than the gender ground, covered by the Bill. Sections 29 to 31 provide for equal pay for like work and for the prohibition of discrimination in relation to other conditions of employment. Section 32 outlaws harassment in employment, on the basis of each of the discriminatory grounds set out in this Part. Section 33 allows positive action in favour of people with disabilities, people above the age of 50 and members of the traveller community. Section 34 allows for the retention by employees of certain family and seniority related benefits that would otherwise be made unlawful under the Bill. It allows for the continued fixing of retirement ages and the phasing out of age related pay. The section also permits the setting of a maximum recruitment age, on trainingrelated cost grounds, and for an exemption from the terms of the Bill where there is clear actuarial or other evidence of significantly increased costs for the employer.

Section 35 is focused primarily to require an employer to make special provision for a person with a disability, provided that such provision would not give rise to a cost other than a nominal cost to the employer. Section 36 allows for the continued application of residency, citizenship and Irish language proficiency requirements in the public service and establishes criteria for setting educational and other qualifications.

Section 37 allows exemptions from the principle of equal treatment. The exemptions are for religious, educational and medical institutions run by religious bodies; for the purposes of authenticity in entertainment; for jobs in circumstances abroad where people of a particular religion or race could not reasonably be expected to operate effectively; for employment in a private household and for the security forces on the age and disability grounds.

Part V, consisting of sections 38 to 65, subsumes the Employment Equality Agency into the new Equality Authority which is established by section 38. Section 39 outlines the functions of the authority, which include, inter alia, working towards the elimination of discrimination and promotion of equality of opportunity.

Sections 40 to 50 deal with the appointment of the chairperson, vice-chairperson and ordinary members of the board of the authority; the arrangements for meetings and business of the authority; the appointment of the chief executive officer and staff of the authority and some standard general provisions for the operation of the authority. Sections 51 to 53 deal with the accounts and audit of the authority, annual reports and the grants and borrowing powers of the authority.

Section 54 empowers the authority, following appropriate consultation, to develop codes of practice for the elimination of discrimination and the promotion of equality of opportunities in employment. The new codes of practice will be admissible in evidence and taken into account in determining any relevant case. Section 55 empowers the authority to engage in research and information activities. Sections 56 to 65 provide that the authority may conduct an inquiry into discrimination and related matters.

Part VI of the Bill, consisting of sections 66 to 71, gives a new statutory power to the authority to carry out equality reviews and devise action plans, sections 67-70, and to review equality legislation, section 71. Part VII, consisting of sections 72 to 103, deals with procedures for resolving disputes in relation to entitlements under the Bill. In an effort to assist in the speedy and informal resolution of disputes, section 76 allows for binding mediation in certain circumstances.

Section 75 is one of the key provisions of this Part. It provides that a person who considers that she or he has been discriminated against, victimised or has not received equal remuneration may, in the first instance, refer the matter to the Director of Equality Investigations, with provision for an appeal to the Labour Court. In the case of a dismissal, the case would be referred directly to the Labour Court, with provision for an appeal to the Circuit Court.

The other key provision is section 80 which allows the director or the court to order an employer to pay up to three years' arrears of remuneration or to order compensation for other acts of discrimination or victimisation up to a maximum of 104 weeks' remuneration. In a case where the person concerned was not in receipt of remuneration, there is provision for an order for compensation up to a maximum of £10,000. In a case involving the dismissal of an employee, the Labour Court may also order reinstatement or reengagement of the employee, if that is considered appropriate.

Arising from recent European Court of Justice case law, the possibility of compensation without limit has been provided for in substantiated gender equality cases. A person who may have been discriminated against on this ground may opt to seek redress through the Circuit Court. In such a case, the only limit on the amount of compensation or arrears of remuneration which may be ordered is a six years' time limit on the backdating of any compensation or arrears of remuneration, section 80(3). This limit on backdating is the maximum such limit enshrined in the generally applicable Statute of Limitations.

Sections 74 and 79 provide a right to seek information for all persons who may have been discriminated against and set out the consequences for an employer for failure to supply such information. Sections 92 to 95 give investigative powers to the Director of Equality Investigations and to the Labour Court to enter premises, to obtain relevant information through interview or otherwise, to ensure compliance in the event of failure or refusal by persons to co-operate with an investigation and to set conditions for the disclosure of information obtained through this process.

Under section 83, the Equality Authority is empowered to refer disputes to the Director of Equality Investigations. The authority may also refer a case to the director on behalf of an individual where it would not be reasonable to expect an individual to refer the case, for example, because of the complexity of the case or because of the individual's fear of victimisation.

Debate adjourned.