Equality (Miscellaneous Provisions) Bill 2013 [Seanad]: Second Stage

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

I wanted to share time with the Minister for Education and Skills, Deputy Jan O'Sullivan. She regrets that owing to the length of time it took to conclude the previous debate she cannot give her remarks, but she very much supports this move.

I am delighted to present this important Bill to the House today. The Bill started life in the Seanad as a Private Members’ Bill under the name of the Employment Equality (Amendment) (No. 2) Bill 2013. Deputies Lyons, Conway and Hannigan, Senator Bacik and I first drafted the Bill and I am delighted to see it reach this stage today. I acknowledge the presence in the Visitors Gallery of representatives of the INTO LGBT society who have strongly advocated a change in this area for some time.

The Government was pleased to support the Private Members’ Bill in principle, bringing forward its own amendments along the way to ensure that the Bill is constitutionally robust, as well as using the opportunity presented to propose certain other changes to equality legislation. These are mainly of a technical nature and required a retitling of the Bill to the Equality (Miscellaneous Provisions) Bill 2013.

The key purpose of the Bill is to amend the existing section 37(1) of the Employment Equality Act 1998 to better protect employees against discrimination in an appropriate and balanced way, while respecting religious freedoms guaranteed in the Constitution, as interpreted by the Supreme Court.

The current section 37(1) of Employment Equality Act 1998 states:

A religious, educational or medical institution which is under the direction or control of a body established for religious purposes or whose objectives include the provision of services in an environment which promotes certain religious values shall not be taken to discriminate against a person for the purposes of this Part or Part II if—

(a) it gives more favourable treatment, on the religion ground, to an employee or a prospective employee over that person where it is reasonable to do so in order to maintain the religious ethos of the institution, or

(b) it takes action which is reasonably necessary to prevent an employee or a prospective employee from undermining the religious ethos of the institution.

The provision was previously contained in the Employment Equality Bill 1996 which was referred by the then President to the Supreme Court under Article 26 of the Constitution. While the court held that Bill to be unconstitutional on other grounds, the constitutionality of what is now section 37 was upheld as a reasonable balance between the competing constitutional rights involved.

While we can seek to find a new balance that better meets the rights of employees, the logic of the Supreme Court decision is that balance needs to be struck; it is not simply a matter of repealing or deleting section 37(1) in its entirety. This would require an amendment to the Constitution, affirmed by the people in a popular vote.

However, recognising that this was a pressing issue and that there was a chilling effect on employees in the teaching and medical professions, the programme for Government committed to amending section 37(1) to ensure that its operation leads to a fairer and more equitable balance as between the rights of freedom of religion or association, on the one hand, and the right of persons in employment, or prospective employees, to be free from discrimination and to privacy in their private lives, on the other.

A key feature of the amended Bill as passed by the Seanad is the distinction drawn between religious institutions that are entirely privately funded and those which are funded by the taxpayer. The rationale is that in the case of the second category, the Government has the right, and arguably a duty, to protect employees who are paid from public moneys from unfair treatment or discrimination in their workplace. The proposal in the Bill before us today will oblige relevant employers in religious-run schools and hospitals to show that any favourable treatment of an employee or prospective employee is limited to the religion ground and action taken against a person is objectively justified by reference to that institution’s aim of protecting its religious ethos and that the means of achieving that aim are appropriate and necessary.

The proposed new subsection will provide that action taken against an employee or prospective employee on the religion ground shall not be regarded as justified unless it is rationally and strictly related to the institution’s religious ethos; a response to conduct of a person which undermines or would undermine the religious ethos of the institution, rather than being a response to that person’s status under any of the other discrimination grounds, for example sexual orientation, set out in equality legislation; and proportionate to the conduct of the employee or prospective employee, having regard to alternative action the employer could take, the consequences of any action taken for the employee or prospective employee and the actual damage caused to the religious ethos of the institution. The aim is to raise the bar so that religious-run schools and hospitals will have to show real damage to their ethos, are precluded from discrimination on any of the other equality grounds, and that any action taken is reasonable and proportionate.

This amendment might seem like a minor change in our law but it will bring a huge sigh of relief to the people whom it affects. Throughout our recent marriage equality referendum campaign, I met teachers who could not talk about their private lives with their colleagues in work. This was not because their colleagues did not accept them, but because they feared the repercussions of being open about their relationship status or sexual orientation. In 2015 this is absolutely unacceptable which is why I am bringing these much-needed changes before the House today.

I am also using the opportunity afforded by the Bill to advance a number of other, mainly technical, amendments to existing equality legislation. The most significant of these is to prohibit discrimination in the letting of residential accommodation on the basis that a person is or is not in receipt of rent supplement or housing assistance payment. It will eliminate the inclusion by some landlords of references to rent supplement not being accepted in advertisements of residential rented property. This will involve an amendment to sections 2 and 6 of the Equal Status Act 2000.

The Bill also proposes to amend the definitions of indirect discrimination in the Equality Acts to follow precisely the definitions in the relevant EU directives and their evolving interpretation by the Court of Justice of the European Union.

Therefore, amendments are proposed to the definitions of indirect discrimination in the Employment Equality Act 1998, the Equal Status Act 2000 and the Pensions Act 1990 to bring the letter of the legislation into line with those directives.

While the Employment Equality Act 1998 prohibits discriminatory advertisements, there is no provision to allow an aggrieved party in relation to an employment opportunity to take a case to the Workplace Relations Commission other than a referral by the Irish Human Rights and Equality Commission, IHREC. The Bill intends to remedy the deficiency by allowing the person himself or herself take a complaint, as distinct from allowing cases to be taken solely by the IHREC. That will involve amendments to sections 2, 8(5), 12 and 13 of the Employment Equality Act 1998.

While the Framework Employment Directive 2000/78/EC, which outlaws age discrimination in employment, was transposed into law by the Equality Act 2004 based on the wording in the directive, the case law of the European Court of Justice has since established that national provisions laying down retirement ages could amount to age discrimination if they cannot be justified under the specific provisions of the directive. The European Court of Justice has also held that the provision of fixed-term contracts on the basis of age constitutes age discrimination and would require justification under Article 6 of the directive. The amendments I propose in the Bill will bring domestic legislation more into line with those judgments. The amendments required are to sections 6 and 34 of the Employment Equality Act 1998.

The State is obliged under the European Economic Area agreement and the EU-Swiss agreements to ensure that benefits in regard to admission to any course of vocational training offered by an educational or training body is extended to EU nationals and is also extended to EEA and Swiss nationals, in the absence of an explicit provision to the contrary in these agreements. In practice, the same benefits in regard to such fees and admission are afforded to EEA and Swiss nationals, but the equality legislation does not refer to Swiss and EEA nationals and needs to be amended to explicitly reference them. In this regard, amendments are required to section 12 of the Employment Equality Act 1998 and to section 7 of the Equal Status Act 2000. I look forward to engaging further with Deputies from all sides of the House on Committee Stage to ensure the Bill is passed and enacted in the shortest timeframe possible.

I will be fairly brief because I know other speakers wish to contribute on the Bill. Most people sometimes wonder what we do in here. What is the purpose of the legislation that we bring into this House? Earlier this evening we voted to ensure that in future budgets people in the public service will receive some of the money that was taken away during very tough times. Tonight, my colleague, the Minister of State, Deputy Aodhán Ó Ríordáin, spoke about section 37 of the employment equality legislation and what is now called the Equality (Miscellaneous Provisions) Bill 2015. As he correctly said, a number of backbenchers, including me, decided that we had to do something about the chilling effect of the legislation on people working in the health or education sectors who might be LGBT, divorced, divorced and living with somebody else, God forbid, or those who are not married who have children. It is not and never was acceptable that a person could not go to work and go into the staff room, be it in a hospital or school, and not be able to talk about where they were at the weekend, who they spent their time with at the weekend or about the person they love so much. Whether we like it or not, the law that exists, which will be changed on foot of this Bill being passed, allowed for that situation to be created for people in society.

I know from meeting with people during the recent referendum campaign, as my colleague also outlined, and from my personal life, that there are many examples of people who, in spite of the passage of the referendum on same-sex marriage, would not feel completely comfortable walking into their staff room and speaking about their private circumstances. That is such a shame in a modern society that people still feel that way. We must do something about that. I agree that the marriage referendum in itself has gone a long way towards shining a light on the fact that we are all more the same than different. The Bill, albeit short and technical in many ways, will make a significant difference to a very small cohort of people who work on behalf of the State, teaching our children and fixing us when we go into hospital in order to make us better, who feel they cannot live their life fully.

I know some people who are in that category but I was not one of those. I always felt comfortable in pushing the boat out but I know that not everybody feels that way. I was very privileged to work in a staff-room that I did not mind going into for 13 years, in particular at a very early stage, and pushing the boat out and speaking about a relationship I might have been in at the time. Thankfully, like most like-minded and decent people in society my colleagues accepted that. However, where that does not prevail in a workplace it can be very hard for somebody to make that jump. The Bill legitimises such people when they go to work by allowing them to feel that the State is watching their back, that they are entitled to be there and to be the people they are, and that nobody can prevent that under the law. That must be welcomed.

What is important about the Bill is that it does not infringe upon religious institutions. This is not a battering of religious-run institutions; it is about recognising that such institutions have rights but the people who work in them have rights that must be respected too. The Minister of State used the phrase “an appropriate balance” in his speech. I will go one step further and say that the law is about creating a proportionate balance between the two, namely, respecting the rights of the individuals who run the institutions and also those who work in them. In a nutshell, what we are doing is making society just that little bit better for some people who do not feel it is right for them now. I hope when the Bill is passed into law soon that it will take away the shadow in which some people feel they have to live currently. I hope that over time it will encourage people who work in schools and hospitals to feel proud of going to work and speaking about the man or woman they love or their forthcoming marriage and not feel it will prevent them for getting a promotion in the future or if they do not have a contract of indefinite duration, CID, and they are only temporary in the school they are in, that it will not in any way affect the possibility of them being returned to the school the following September. When the Bill is enacted the legislation will watch their back and allow them to feel like full citizens, whereas at the moment they still feel there is a little blot on their homework, so to speak, that prevents them from being treated as full citizens.

I very much appreciate the provision relating to raising the bar. If a religious-run institution such as a school or hospital feels its ethos is being undermined it must prove the case. As a man who happens to be gay, through no fault of my own, in the 13 years I worked in a secondary school, I in no way tried to undermine the religious ethos of the school. If anything, I embraced the mission statement of the school and I worked with it during my time there to ensure it was achieved. My sexuality did not interfere with the mission statement of that religious-run institution and neither does the sexuality of any teacher, nurse or doctor who works in any other religious-run institution.

The harsh reality until now is that some people feared they might not be allowed to continue in their job. I had a personal experience many years ago which frustrated me. An anonymous letter was sent to the school principal highlighting that John Lyons was gay and asking if the principal knew that. There was a little bit more in the letter but that was the gist of it. I gave all to that school. I got up early to go to school, I was going to say, unless I had a - I was going to say a hangover but I have just said it – unless I was not feeling well in the morning or I was just having a bad day. I gave it socks, and I gave it more than I was paid for, which to be fair is what most teachers do. I knew how awful the principal felt when he told me about the letter. He felt so uncomfortable because he thought that should not be happening in society but he had to let me know about the letter that had arrived. The two of us sat down in the office and he said, "John, I do not want to tell you this, but I must show you this letter that arrived in". For a while afterwards, my support for that school, where I gave everything and more, was on the ground.

I wondered why I should give so much to this place that essentially was putting me in a position whereby were I ever to apply to become principal, it might have an effect on me. This is a real-life example of how the current law affects people and this chilling effect does exist.

I know of another person who is now divorced and who works in a school. She essentially was threatened by somebody in her community, who told this person she would remind the principal she now was living with another man. This is not acceptable and these are two real-life examples from people living in this society who consider that because of decisions they have made in their lives or through no fault of their own, they are being persecuted and may be at risk of not being able to continue in their current place of work.

As a member of the Labour Party, this is one of the reasons I joined that party, not to amend section 37 but for the type of things the Labour Party tries to achieve when it is in government. The Labour Party has not been in government very often but when it is, its members always put at the forefront of what they do laws that try to make people's lives in society much better in order that in some way, they can state they are proud to grow up and grow old in that society. As for the Labour Party's mark on this society over the past four and a half years, when it comes to social change we have done as much as we can and I am proud of the things the party has done. I am delighted that Members are finally getting to amend section 37 to ensure the lives of another cohort of people who live in this society will be a little bit better. This does not cost anything but will mean a lot for those people.

I strongly agree with another provision and I commend the Minister of State on its inclusion, namely, the issue of rent supplement. Since my election and earlier, I have seen the sickening scenario on a daily basis in which landlords have refused without giving a reason to accept tenants in receipt of rent supplement. These are good, decent people who have approached me, having been refused because they are in receipt of rent supplement. On all websites such as Daft.ie that advertise homes, I note that at this stage, pretty much every house and apartment has a line under the advertising details stating rent supplement is not acceptable. To me, these are good, decent people who are acceptable in society and who, through no fault of their own, had no place to which to go except to the private rented sector. In most cases, landlords are decent people but to be fair to those who have a right to have somewhere to live, I am glad the Minister of State is making a statement in this regard to make sure the day no longer can exist whereby somebody in need of a place to live and who only has the financial support of rent supplement to pay the rent can be barred from trying to find accommodation. I look forward to working with people in that position to ensure landlords take on such people because like anyone else, they are good, decent people who happen to find themselves, through no fault of their own, in rented accommodation. It is not acceptable for any landlords to refuse somebody because he or she is in receipt of rent supplement.

I commend this Bill, of which I am very supportive. Most importantly, however, I am delighted for those who may walk that tiny bit taller when the Bill is passed.

Seven minutes remain in this slot before we move on to Private Members' business and I understand the Labour Party Members are sharing time.

I am delighted to be able to speak on Second Stage of what is now known as the Equality (Miscellaneous Provisions) Bill. On thinking about what makes us human, it is when we talk about personal stories, that is, the things that happen outside of work and at the weekends. These are the things that fill the days of workers in staff rooms, break rooms and canteens nationwide. The thought that because of one's sexuality, because one's marriage had ended or because one had a child while unmarried, one might not feel comfortable in one's ability to talk about what is the monotony of life with one's colleagues for fear that one might put one's job or one's career prospects at risk is, in 2015, something that is a relic of the past. This is why I am so delighted this Bill has been brought before the House. It is worth noting the former Minister, Deputy Quinn, and the current Minister for Education and Skills, Deputy Jan O'Sullivan, have been embarrassed in recent years to attend teacher conferences and to tell delegates they were sorry but this legislation still had not been passed. One must ask why this is the case and why there has been resistance to the amendments in this legislation. Although technical in nature, this Bill will be highly practical in its application and will make a real difference for real people.

There is a story with which I am familiar and about which the Minister, Deputy Jan O'Sullivan, intended to speak this evening. The lesbian, gay, bisexual and transgender, LGBT, section of the Irish National Teachers Organisation, INTO, to which reference has been made, has been working on this issue for many years. I understand President Higgins invited it to Áras an Uachtaráin, in a very proud moment, to acknowledge its work. However, to our shame, some of those teachers did not feel sufficiently comfortable to pose for a photograph with President Higgins for fear of retribution on their return to the staff-room the following Monday. This is outrageous and I am embarrassed this was how they felt. I am delighted this no longer will be the case when this legislation passes through the Dáil.

I often think about what it is to be in a relationship and about the kinds of things one does, often to the mortification of one's children, such as holding hands while walking down the street. However, for some people it is a political statement to hold the hand of their loved ones while walking down the street. It is outrageous that any teacher, nurse, doctor, social worker, care assistant, porter, secretary or whomsoever works in a hospital or a school should feel he or she cannot hold the hand of his or her loved one while walking down the street for fear of retribution. It is in respect of such things, which most of us take for granted, that this legislation will have a practical and real impact on people's lives. It also is worth thinking about what has happened under the aegis of the former Minister, Deputy Quinn, and the present Minister, Deputy Jan O'Sullivan, in respect of the anti-bullying stance that has been taken for the first time. It is to make sure the tackling of homophobic and transphobic bullying is compulsory in all schools, because bullying on account of people's sexuality or because of how they are is too often allowed to fester. All Members know about getting in early when trying to tackle and change behaviour or attitudes, that is, when people are young and in school. Regardless of religious ethos, it now is compulsory for all schools to make sure that homophobic and transphobic bullying are tackled. This is an issue about which people have spoken for years but on which the present Government has delivered.

To echo the sentiments expressed by my colleague, Deputy Lyons, these changes are important because often the charge is levied upon Members of this House that society has moved on while the people here have not. I note this Bill was published almost three years ago and I would have very much liked to have had this Bill passed many years ago. It has been frustrating that it has taken until now to do it. That said, this will make a real difference to many people's lives and I hope there will be another reason for the aforementioned INTO members to be invited to Áras an Uachtaráin, where they will feel capable of stepping into a photograph with the President and for it to be shared across social media as a proud moment, as it would be for any member of society.

I will conclude by referring to another story, in which I understand that Newstalk, a national radio station, ran a competition to win a free wedding. Who would not want that prize, as they are costly matters? I understand the two women who won the competition could not publicly accept it because one of them was a teacher. This legislation will mean real changes for real people's lives.

Debate adjourned.