I move: "That the Bill be now read a Second Time."
The measures which I bring before the Dáil are intended to meet Ireland's obligations as a member of the European Union to implement Community initiatives provided for under Council Directives 2000/43/EC and 2000/78/EC, adopted under Article 13 of the EC Treaty, and Council Directive 2002/73/EC adopted under Article 141 of the treaty. The directives, commonly known as the equality directives, provide for equal treatment on the grounds of gender, racial or ethnic origin, religion or belief, disability, age and sexual orientation. The race directive, 2000/43/EC, provides a flexible general framework for combating discrimination on the grounds of racial or ethnic origin in both the employment and non-employment areas. The framework employment directive, 2000/78/EC, provides a general framework for the prohibition of discrimination in regard to employment and occupation on the grounds of religion or belief, disability, age or sexual orientation. The gender equal treatment in employment directive, 2002/73/EC, updates and improves the 1975 equal pay and 1976 equal treatment directives.
The overall effect of these three directives is to require member states to prohibit direct discrimination, indirect discrimination and harassment on grounds of gender, racial or ethnic origin, religion or belief, disability, age and sexual orientation in regard to employment, self-employment or occupational and vocational training. Sexual harassment and victimisation are also prohibited. The race directive also applies to discrimination in access to and the supply of goods and services.
As Members of the House are aware, Ireland is already to the fore in its promotion and protection of the principles of equality and freedom from discrimination as a result of the ground-breaking legislation enacted in this regard in 1998, with the Employment Equality Act, and in 2000, with the Equal Status Act. This legislation prohibits both direct and indirect discrimination in the areas of employment and access to goods and services on nine grounds; gender, marital status, family status, sexual orientation, religion, age, disability, race or membership of the Traveller community. Thanks to the quality, effectiveness and far-sightedness of our existing equality legislation, many of the amendments required by the EU directives are relatively minor and mostly of a technical nature.
There are a number of new provisions in the directives which require transposition into national law for which it is both necessary and appropriate to make provision in primary legislation. I propose to provide for their transposition through amendments to the Employment Equality Act and the Equal Status Act, as provided for in the Bill. The Social Welfare (Miscellaneous Provisions) Bill 2004 provides for the transposition of the directives with respect to matters relating to occupational pensions.
It is important to ensure that a coherent and consistent approach is maintained in our legislative and administrative infrastructure for equality. This will facilitate ease of access for persons who claim they have been discriminated against, particularly where more than one ground for discrimination is cited. For this reason, amendments arising from the directives are being implemented at the same time in one Bill. In addition, with a view to preserving coherence across the nine grounds in the legislation, it is intended to implement the requirements of the directives in a way which applies their provisions to each of the nine grounds and to both employment and service provision where this is feasible and appropriate.
An opportunity arises in this process to align more closely the provisions of the Employment Equality Act and Equal Status Act. As already referred to, the general principle here would be to broaden the scope of any such provision, for example, extension of the definition of discrimination under the Employment Equality Act to include discrimination by association or imputation, as is the case under the Equal Status Act, and extension of sexual harassment under the 1998 Act to encompass same sex sexual harassment, as under the 2000 Act. It is also considered appropriate to avail of this opportunity to amend the Employment Equality Act to incorporate the provisions of the gender directive which reflect European Court of Justice case law in regard to discrimination on the grounds of pregnancy or maternity leave, within the meaning of the Maternity Protection Act, 1995.
A consolidated approach to the amendment process is also reflected in the decision to incorporate directly into the Employment Equality Act and Equal Status Act, the provisions of Statutory Instrument No. 337 of 2001 implementing Council Directive 97/80/EC, which deals with burden of proof in gender discrimination cases. The directive, which applies to gender discrimination only, provides for the transfer to a respondent of the evidential burden of proof where a complainant establishes a prima facie case of discrimination. Under the race and framework employment directives, this provision will extend to proceedings on the discriminatory grounds and in the circumstances covered by those directives. For the purposes of consistency and transparency of the legislation, I intend to amend both the Employment Equality Act and Equal Status Act in a way which applies the provision to all nine grounds, including the original ground of gender.
As a result of the framework employment directive, the obligation on employers under the Employment Equality Act to provide reasonable accommodation to meet the needs of people with disabilities is being broadened. As a result, employers will be required to take appropriate measures to make such accommodation, except where these would impose a disproportionate burden. The broader focus of the new provision will contribute to increased access to the workplace for people with disabilities. The constitutional limitation, which has confined the requirement in respect of reasonable accommodation under national law to a threshold of "nominal cost", will continue to apply in the case of the Equal Status Act, as there is as yet no similar EU provision in the area of goods and services. A significant extension to the scope of application of the Employment Equality Act is to be made in respect of the self-employed and partners in firms. As a result, persons who are or were employed under a contract personally to execute any work or labour, as well as partners and former partners in firms, will be protected from discrimination in the workplace. The Bill also provides for revision of some of the categories of exclusion which are allowed under the Employment Equality Act. As a result, there will no longer be blanket type exclusions in the case of employment in the Garda Síochána and Prison Service.
I also propose to deal with certain other exclusions currently provided for under sections 26 and 37 of the Employment Equality Act and section 6 of the Equal Status Act, which apply on a broad basis to private households. The current exclusions in this regard, applicable to employment and the provision of accommodation in small premises in which the owner also resides, are not being retained in the context of the race and framework employment directives, and will be replaced with new provisions which relate specifically to access to employment involving the provision of personal services and the provision of accommodation in a person's home, where the private or family life of those concerned is affected. This will balance the protections afforded to one person's right to privacy and another person's right to equal treatment.
The opportunity is also being taken to introduce a number of technical, procedural and other minor amendments to the Employment Equality Act and Equal Status Act, arising from experience gained in the operation of the Acts as well as consultations with relevant interests. These amendments include, among others, clarification of time limits for referral of cases, date of occurrence of discrimination, treatment of cases involving more than one discriminatory ground, enforcement of determinations, decisions and mediated settlements, award of expenses and rules in regard to parallel claims and awards of compensation or redress. I am also pleased to take this opportunity to amend the Equal Status Act in two further important aspects. The first of these will provide certainty in regard to the ability of a parent or representative of a person with an intellectual or psychological disability to act in place of the person concerned seeking redress. The second amendment will enable licensed drivers under the age of 18 to have recourse to the Equal Status Act in cases of unreasonable treatment in relation to motor insurance.
In preparing the legislation as proposed, I have attempted to take account to the fullest extent possible of the views of and proposals from interested parties and expert groups involved. In the area of employment, a wide-ranging consultation process involving Departments, the Equality Authority, the office of the Director of Equality Investigations, the Equality Tribunal, the Labour Court and the social partners has served to elucidate the approach of the legislative proposals in both practical terms and on points of policy within the confines of the directives. This consensus approach to the regulation of employment and social partnership principles is an essential element of good law. A less formal consultation process was also undertaken in regard to the race directive as it affects the Equal Status Act. This included the use of information meetings on the directives organised by the National Consultative Committee on Racism and Interculturalism and other fora and public consultation on the forthcoming national action plan against racism to disseminate interest and awareness among key interest groups. This approach will ensure that Ireland continues to have one of the most socially advanced equality codes in the world and maintains a high profile position in the international fight against discrimination. I acknowledge the valuable contributions made to the Bill in its passage through the Seanad as a result of which a number of substantive amendments have been taken on board.
I will now deal with the main provisions in the Bill. The Bill is divided into three parts as follows. Part 1 contains preliminary and general technical provisions in regard to collective citations, construction and interpretation of the Bill. Part 2 deals with amendments to the Employment Equality Act 1998. Part 3 deals with amendments to the Equal Status Act 2000. Part 2 comprises sections 3 to 43 of the Bill, each of which provides for amendments to the Equality Act, which for convenience I will hereafter refer to as the Act of 1998.
Section 3 amends section 2 of the Act of 1998. It is proposed to amend the definition of "contract of employment" for the purposes of the Act of 1998, to include contracts to personally execute work or services and to deem references under the Act to employees or employers to include the parties to such contracts. It is also proposed to amend the definition of "employee" to include, where the context admits, members or former members of a regulatory body and to exclude, only in so far as access to employment is concerned, persons employed in the provision of personal home services affecting the private or family life of those concerned. The definitions of "discrimination" and "the Director" are being amended to include, in the former case, the issue of an instruction to discriminate, and to replace, in the latter case, "Equality Tribunal" for "Equality Investigations". The scope of the definition of "proceedings" is being widened to include any proceedings, including subsequent proceedings, before a person, body or court dealing with a request or referral under the Act of 1998. For clarity, new definitions in respect of "personal services", "persons" in regard to sections 19, 22, 29 and 31, and "provision" are being inserted.
Section 4 amends section 6 of the Act of 1998. Paragraph (a) provides for the replacement of section 6(1) of the Act of 1998 to include less favourable treatment by imputation or association with another person. This parallels the provision under the Equal Status Act and is one of a number of amendments proposed for greater consistency between the two pieces of legislation. Paragraph (b) provides for a new section 6(2A) of the Act to provide that less favourable treatment on a ground related to pregnancy or maternity leave comes within discrimination on the gender ground. Paragraph (c) provides, in accordance with the framework employment directive, for a new section 6(3) to substantively amend the existing exclusion from discrimination on the age ground in respect of persons less than 18 years or 65 years or over. In the former case, a provision based on the statutory age for school leavers is proposed, and employers may continue to set minimum recruitment ages where these do not exceed 18 years. No upper age threshold is provided for but compulsory retirement ages may continue to be set. A consequential amendment to section 2(1)(b) of the Unfair Dismissals Act 1977 is also provided for.
Section 5 is a technical amendment to section 10(2) of the Act of 1998 which simplifies the text and refers to a characteristic mentioned in any of the discriminatory grounds rather than to a "relevant characteristic" which is no longer defined for the purposes of the Act. Section 6 is a further technical amendment to provide for the deletion of section 12(3) of the Act of 1998 as a result of the provision in section 4 of the Bill removing the age references in section 6(3) of the Act.
Section 7 inserts a new section 13A into the Act of 1998 to include partnerships in its scope. In extending the scope of the Act of 1998 to the self-employed, it is proposed to include in a new section 13A to the Act a specific provision in respect of partners within partnerships, including general partners within limited partnerships. The new provision deems references to employees to include reference to partners and references to employers to include reference to partnerships.
Section 8 inserts a new section 14A which deals with harassment and sexual harassment. Under the directives, a common approach is taken to the treatment of harassment and sexual harassment on any of the discriminatory grounds. It is proposed to reflect this approach by inserting a single new provision on harassment and sexual harassment and removing the present separate provisions in section 23 in respect of gender related sexual harassment and, in section 32, in respect of non-gender related harassment. As a consequence, sections 14 and 21 of the Bill propose the deletion of those sections of the Act.
Section 9 replaces the provision under section 16(3) of the Act of 1998 dealing with the duty of employers and persons engaged in vocational training to accommodate the needs of people with disabilities to enable them to access and participate in employment or training. At present, the requirement on employers is limited to the provision of special treatment or facilities where this gives rise to no more than a nominal cost. Arising from Article 5 of the framework employment directive, it is proposed to extend the requirement to make reasonable accommodation to include a range of "appropriate measures", enumerated but not limited to the measures outlined in paragraph (b) of the section, which shall be taken into account in determining what constitutes a “disproportionate burden” on the employer. A similar amendment in respect of the provision for reasonable accommodation in the Equal Status Act is not proposed as the constitutional barrier remains in place as far as that Act is concerned.
Section 10 amends section 17(2) and (4) of the Act of 1998, under which compliance with specified statutory provisions is excluded from discriminatory action on the grounds of race and age. Having regard to the framework employment directive, it is proposed to replace these provisions. Paragraph (a) amending section 17(2) gives effect to Article 3.2 of the framework employment directive, which excludes from its scope differences of treatment based on nationality, with particular reference to the provisions and conditions relating to the entry into and residence of third country nationals and stateless persons in the member states and to any treatment arising from their legal status. The exclusion will apply only to actions taken in accordance with a statutory condition or provision governing access to employment or occupation. Paragraph (b) takes account of the differences of treatment on the ground of age which are permitted in accordance with Article 6 of the framework employment directive.
Section 11 makes a technical amendment to section 18 of the Act of 1998, arising from the amendment in section 4(b) of the Bill, to section 6 of the Act, allowing a comparator in the case of less favourable treatment on a ground related to pregnancy or maternity to be either male or female.
Section 12 amends section 19 of the 1998 Act on entitlement to equal remuneration. As a result of the new definition of "employee" in section 3 of the Bill, the separate definition of employee in section 19(2) of the Act of 1998 is no longer required and is deleted under paragraph (a). The definition of indirect discrimination on the gender ground in relation to equal remuneration in section 19(4) of the Act is amended under paragraph (b). The amendment takes account of the definition of indirect discrimination under the gender directive and will apply to provisions which are apparently neutral and may be claimed only where the person considers that he or she has experienced discrimination. An employee or trainee will not be required to evidence his or her claim by reference to the proportion of other employees of the same gender who are similarly affected. However, either party may use statistical evidence in relation to a claim. This provision is paralleled, in the non-gender area, in section 19 of the Bill, amending section 29 of the Act.
Section 13 amends section 22 of the Act of 1998, dealing with indirect discrimination on the gender ground other than in relation to remuneration. This amendment parallels the amendment to section 19 of the Act provided for under section 12 of the Bill. The separate reference to the grounds of marital and family status in section 22(4) of the Act is no longer required as a result of this amendment and is being deleted.
Section 15 brings the provision for positive action measures under section 24(1) of the Act of 1998, more closely in line with the provision in this regard under Article 2.8 of the gender directive. Section 16 replaces the provision in section 25 of the Act of 1998 permitting discrimination on the gender ground where a person's gender is an occupational qualification with a more limited provision in respect of access to employment in line with Article 4 of the framework employment directive. The new provision takes account of genuine and determining occupational requirements, legitimate objective and the proportionate requirement. This will provide a higher level of protection from discrimination on the gender ground than heretofore by imposing strict tests on employers in each case where it is proposed to restrict recruitment to one or other gender. As a result of this provision, a technical amendment to section 27 of the Act is provided for in section 18 of the Bill.
Section 17 amends section 26 by deleting subsection (2), which is replaced by a more limited exclusion consequent on the definition of "employee" provided for in section 3. Section 19 replaces the provision in section 29(4) of the Act of 1998 dealing with indirect discrimination in regard to equal remuneration other than on the gender ground. The new subsection (4) applies section 19(4) of the Act to the non-gender grounds.
Section 20 replaces the provision in section 31(1) of the Act of 1998 in relation to indirect discrimination on a ground other than gender and other than in relation to remuneration. In addition, as a result of the amendment to the definition of "employee" which includes members of regulatory bodies, the specific provision in this regard in section 31(2) is being deleted.
Section 22 substitutes a new section for section 33 of the Act of 1998 to bring the provision for positive action measures more closely in line with the provision in this regard under Article 7.1 of the framework employment directive. Section 23 amends section 34 of the Act of 1998 which pertains to savings and exceptions related to family, age or disability. Article 6.2 of the framework employment directive permits discrimination on the age ground in respect of occupational benefits schemes. The amendment to section 34(3) of the Act of 1998 will reflect this principle and delete the exclusions currently permitted on the grounds of age or disability.
Section 24 amends section 35 of the Act of 1998 to clarify that the exemption from discrimination on the disability ground, in section 35(1) of the Act of 1998, in respect of the payment to an employee with a disability of a particular rate of remuneration, applies only where the rate is determined on the grounds that the employee in question has a lesser output of work in a particular period of time when reasonably compared with that of an employee without the disability. Arising from an amendment accepted in the Seanad, provision is included in the section to ensure that it is not permitted to set a rate of pay below the national minimum wage.
In parallel to the proposed amendment to section 25 of the Act of 1998 relating to differences of treatment on the gender ground, section 25 amends the corresponding non-gender provision in section 37(2) of the Act of 1998 to permit difference of treatment based on a characteristic related to a discriminatory ground where it constitutes a genuine and determining occupational requirement and the objective is legitimate and the requirement proportionate. Provision is also made in new subsections (3) and (4) for certain operational requirements applicable to the Garda Síochána and the prison and emergency services. Subsection (5) provides for a continuation of the exemption for the Defence Forces in respect of the age and disability grounds. The exclusion under section 37(5) of the Act in respect of employment in private households is being replaced with the more restricted exclusion by way of the definition of "employee" under section 3 of the Bill.
Section 26 amends section 44(4) of the Act of 1998 to permit remuneration to be paid to members of the Equality Authority. This provision is in keeping with current policy and practice in similar State boards.
Section 27 amends section 67 of the Act of 1998 to clarify a number of technical points relating to solicitors employed by the Equality Authority, including the fact that the normal provisions governing legal privilege and client confidentiality apply. Section 28 amends section 74 of the Act of 1998, substituting new definitions of "equality mediation officer" and "equality officer" in subsection (1) in line with the related amendment under section 28 of the Bill to section 75 of the Act. Subsections (2) and (3) are also amended to extend the range of circumstances which may give rise to victimisation and to clarify the date of referral or appeal of a case to the director, the Labour Court or the Circuit Court in the case of specified provisions in the Act and the Equal Status Act.
Paragraphs (a) to (c) of section 29 make a number of necessary technical amendments to section 75 of the Act of 1998 arising from the proposed renaming of the Office of the Director of Equality Investigations as the Equality Tribunal. Paragraph (d) makes necessary deletions in sections 75(3) and (4) of the Act to remove references to equality officers of the Labour Relations Commission and empowers the director to issue guidelines or guidance notes, appoint persons as equality mediation officers and delegate functions. The inclusion of the provision to empower the director to appoint mediation officers will, for example, facilitate the director in quickly addressing or preventing a backlog building up in the tribunal of cases which may be suitable for fast resolution by means of mediation by the appointment of additional mediation officers on a short-term contract basis from a panel of qualified and experienced non-civil servant mediators. This is highly specialised work and the Civil Service does not have a corps of qualified mediators on which the tribunal might draw on a temporary basis to address short-term surges in caseload.
Section 30 amends section 76(2)(c) of the Act of 1998 to include as material information which may be sought by an employee claiming discrimination, information, other than confidential information, about the scale or resources of the employer’s business. Section 31 proposes a number of amendments to section 77 of the Act of 1998 to provide greater clarity and effectiveness to the operation of the redress procedures under the Act. Paragraph (a) replaces section 77(5) and (6) with new provisions to facilitate late claims to be accepted where there is reasonable cause or where there is misrepresentation by a respondent, and to clarify the relevant date to be applied in a claim of discrimination or victimisation.
Paragraph (b) replaces section 77(9) with a new provision extending the grounds on which a member of the Defence Forces may seek redress under this section of the Act to include all the discriminatory grounds other than the grounds of age and disability. Paragraph (c) adds new provisions to the section permitting parties to any proceedings under the Act to be represented and deals with appeals in respect of decisions to accept or refuse late claims.
Section 32 inserts a new section 77A in the Act of 1998 dealing with dismissal of claims. This will allow the director or the Labour Court to dismiss claims he or she considers to have been made in bad faith or to be frivolous, vexatious, misconceived or trivial. It is common to assign a discretionary power of this nature to an investigative or complaints body, and the existing similar provision in the Equal Status Act will be aligned with the new section 77A under section 53 of the Bill.
Section 33 is a technical amendment to section 78(7) of the Act of 1998 to stipulate that an application for a resumption of a hearing shall be in writing and, where a notice has been issued by an equality mediation officer, to remove the requirement that an application for exemption be accompanied by a copy of that notice.
Section 34 amends section 79 which deals with investigation by the director or the Labour Court. The amendment proposed in paragraph (a) will introduce an important technical change to the operation of section 79 of the Act of 1998 which will facilitate a more streamlined approach to the investigation and determination of individual sets of circumstances where more than one discriminatory ground is involved. As a result, where a set of circumstances gives rise to more than one claim of discrimination or to one or more claims of discrimination and a claim of victimisation, they shall be investigated as a single case. It will continue to be the case that a decision will be made in respect of each of the claims. A minor textual amendment is also proposed under paragraph (b).
Section 35 adds a number of new provisions to section 82 of the Act of 1998, including a new provision at subsection (6) which further addresses the situation where one set of circumstances leads to claims of discrimination on more than one discriminatory ground. In addition to investigating such claims as a single case, compensation will be awarded on the basis of a single case. It is also considered appropriate to exclude the Equality Authority, as a statutorily funded agency, from awards of compensation and to proscribe the taking of a case under both the Act of 1998 and the Equal Status Act in respect of the same act of victimisation.
Section 36 inserts a new section 85A regarding burden of proof into the Act of 1998. This takes account of Article 8 of the race directive and Article 10 of the framework employment directive, the effect of which is to place the burden of proof on the respondent where a prima facie case of discrimination has been established by the complainant. It is proposed that the provision will be applied to all the discriminatory grounds. This principle is already applicable to cases of discrimination based on sex as a result of Directive 97/80/EC, implemented by SI 337 of 2001.
Section 37 will provide, in section 91 of the Act of 1998, that the respondent in a mediated settlement may apply for an order to enforce the terms of a settlement. It is also proposed that, where an enforcement application is made by the Equality Authority on behalf of a complainant, the court may award costs to the authority.
Section 38 is a technical amendment to section 98(1)(b) of the Act of 1998 to align the reference therein to section 74(2) of the Act as a result of the amendment to that section provided for in section 28 of the Bill.
Section 39 inserts a new section 99A in the Act of 1998 to empower the Labour Court or the director to order a person obstructing or impeding an investigation or appeal to pay travelling and other expenses reasonably incurred by persons in connection with the investigation or appeal, excluding expenses in respect of representation.
Section 40 amends section 101 of the Act regarding alternative avenues of redress and is intended to remove the present impediment to provision of redress in unfair dismissal cases initiated in the Labour Court. As a result of the amendment proposed to section 101(5) of the Act of 1998, the Labour Court may, in appropriate cases, direct that an alternative avenue of redress may be pursued.
Section 41 inserts a new section 101A in the Act of 1998 to ensure that, where a person who has been dismissed or constructively dismissed seeks redress for an act of discrimination or victimisation from the director and the Labour Court, redress may not be awarded by both for that act. This principle will also be applied in the case of contraventions of the Protection of Employees (Part-Time) Act 2001, and the Protection of Employees (Fixed-Term Work) Act 2003.
Section 42 is a technical amendment to section 102(1) of the Act of 1998 to add cases referred to the director under the Anti-Discrimination (Pay) Act 1974 or the Employment Equality Act 1977 to the list of references which may, after one year of referral, be struck out by the director where they are no longer being pursued by complainants. Section 43 is a technical amendment to section 105, paragraph (a), to replace the reference to “Director of Equality Investigations” with “Director of the Equality Tribunal”, as proposed under section 29 of the Bill.
Part 3 comprises sections 44 to 60, inclusive, amending the Equal Status Act 2000, hereafter referred to as the Act of 2000. Section 44 widens the scope of the definition of "proceedings" to include any proceedings, including subsequent proceedings, before a person, body or court dealing with a request or referral under the Act of 2000. It also provides for the definition of a new term, "provision", meaning a term in a contract or a requirement, criterion, practice, regime, policy or condition affecting a person. It also helps to clarify the relevant date to be applied in relation to a claim of prohibited conduct.
Section 45 amends section 3(1) of the Act of 2000 by inserting a new definition of indirect discrimination to reflect the more advanced definition in the race directive. The existing subsection (3) provides generally that treating a person who has not attained the age of 18 years less favourably or more favourably than another, whatever that person's age, shall not be regarded as discrimination on the age ground. It is compulsory for licensed drivers under the age of 18 to have motor insurance and it is reasonable, therefore, that such drivers be protected from unreasonable differences in treatment. In this regard, it is proposed to amend section 3(b) of the Act of 2000 to enable licensed drivers under the age of 18 to have recourse to the Act of 2000 in cases of unreasonable treatment.
A new subsection provides that statistics are admissible for the purpose of determining whether indirect discrimination has occurred or not. This is being applied in accordance with recital 15 to the race directive, which provides that, in accordance with the rules of national law or practice, such rules may provide, in particular, for indirect discrimination to be established by any means, including on the basis of statistical evidence.
Section 46 provides for a very narrow exemption excluding the provision of accommodation by a person in a part, other than a separate and self-contained part, of the person's home, where the provision of the accommodation affects the person's private life or that of any other person residing in the home.
Section 47 amends section 7 of the Act of 2000 to provide that the Minister for Education and Science does not discriminate where, in the exercise of his or her powers, he or she prescribes requirements for the making of grants for the purpose of assisting persons to attend, or continue to attend, an educational establishment providing higher or further education which confine the making of such grants to persons who are nationals of a member state of the European Union or allow for difference of treatment between those who are nationals of member states and those who are not.
Section 48 redefines harassment as any form of unwanted conduct related to any of the discriminatory grounds, and defines sexual harassment as any form of unwanted verbal, non-verbal or physical conduct of a sexual nature. The section also provides that a person's rejection of, or submission to, sexual or other harassment may not be used by any other person as a basis for a decision affecting that person. These changes are to apply the newer definitions set out in the relevant directive.
Section 49 provides for an exclusion from the provisions of the Act of 2000 of actions taken by public authorities relating to specified persons and governing or arising from their entry into and residence in the State, as permitted under Article 3 of the race directive. The Government is of the view that, as far as possible, discrimination on the grounds of nationality should not be permitted. I propose, therefore, that section 14 be amended to provide that, save in issues of asylum and immigration and differences of treatment in the provision of public services to asylum seekers and those not lawfully resident in the State, the Act of 2000 will apply to differences of treatment based on nationality.
Section 50 extends the definition of complainant to allow a parent or guardian of a complainant with an intellectual or psychological disability to act in place of the person concerned. Section 51 proposes a number of amendments to section 21 of the Act of 2000 to provide greater clarity and effectiveness to the operation of the redress procedures under the Act. Paragraph (a) is a technical amendment dealing with notification of the respondent. Paragraphs (b) to (f) make further technical amendments to facilitate the acceptance of late claims where there is reasonable cause or there has been misrepresentation by a respondent and to clarify the relevant date to be applied in a claim of prohibited conduct.
Section 52 inserts a new provision, section 21A, in the Act of 2000 to provide clarification that the date on which a claim or appeal is lodged is the date it is received by the director or Circuit Court. Section 53 provides for an amendment that allows for a method of appeal against a decision of the director to dismiss a claim because it has been made in bad faith or is frivolous, vexatious or misconceived or relates to a trivial matter.
Section 54 is a technical amendment to section 24(6) of the Act of 2000 to stipulate that an application for a resumption of a hearing shall be in writing and, where a notice has been issued by an equality mediation officer, to remove the requirement that the resumption request be accompanied by a copy of the notice. The amendment proposed in section 55(a) will introduce a technical change to the operation of section 25 of the Act of 2000 to keep in line with amendments under the Employment Equality Act 1998. Where a set of circumstances gives rise to more than one claim of discrimination across more than one of the grounds, they shall be investigated as one case and, where one or more claims of prohibited conduct include a claim on the ground of victimisation, they may be investigated as a single case. It will continue to be the case that a decision shall be made in respect of each of the claims. A minor textual amendment is also proposed under paragraph (b).
Section 56 proposes the insertion of a new section 25A in the Act of 2000 to provide that any party to proceedings under section 24 or section 25 of the Act may be represented by an individual or body authorised by that party to represent him or her in the proceedings. Section 57 includes a minor technical amendment proposed under paragraph (a). Paragraph (b) adds a number of new provisions to section 27 of the Act of 2000, including a new provision at section 27(3) of the Act, which also deals with the issue addressed in section 55 of the Bill where one set of circumstances involves claims of discrimination on more than one discriminatory ground. In addition to investigating such claims as a single case, compensation will be awarded on the basis of a single case. It is also considered appropriate to exclude the Equality Authority, as a statutorily funded agency, from awards of compensation.
Section 58 will provide, in section 31 of the Act of 2000, that the respondent in a mediated settlement may apply for an order to enforce the terms of a settlement and that, where such an application is made by the Equality Authority, the court may award costs to the authority. Section 59 inserts a new section 37A in the Act of 2000 to empower the director to order a person obstructing or impeding an investigation or appeal to pay travelling and other expenses reasonably incurred by persons in connection with the investigation or appeal excluding expenses in respect of representation.
Section 60, which inserts a new section 38A in the Act of 2000, takes account of Article 8 of race directive, the effect of which is to place the burden of proof on the respondent where a prima facie case of discrimination has been established by the complainant. It is proposed that the provision will be applied to all nine discriminatory grounds.
I believe that the progressive and comprehensive nature of the legal and administrative framework for equality which the Government introduced in its previous term of office is endorsed by the legislation before the House. The prohibition of discrimination in both the workplace and the area of service provision on the nine grounds specified in the Employment Equality Act 1998 and the Equal Status Act 2000 continues to provide employees and individual citizens of this country with greater protection than they could be sure of securing on the basis of EU citizenship. The proposed amendments to the 1998 and 2000 Acts are welcome extensions to our existing provisions and can be accommodated without tension or difficulty. Implementation of the race, gender and framework employment directives provides a welcome opportunity to review and expand the existing provisions in these areas, and to do so in the broadest possible way in terms of the grounds and circumstances in which discrimination is prohibited.
I look forward to contributions by Deputies on this important legislation and I commend the Bill to the House.