Seanad Éireann debate -
Wednesday, 5 Mar 1997

Vol. 150 No. 7

Employment Equality Bill, 1996: Committee Stage.

Section 1 agreed to.

SECTION 2.

Mr. Dardis

I move amendment No. 1:

In page 8, subsection (1), lines 24 to 39, to delete the definition of "disability" and substitute the following:

"‘disability' means the impact on an individual of a duly recognised physical, sensory, psychological or mental impairment which affects or substantially reduces their prospects of securing, retaining and advancing in employment; and' physical, sensory, psychological or mental impairment' means—

(a) the total or partial loss of a person's bodily or mental functions, including the loss of a part of a person's body, or

(b) the presence in the body of organisms causing or likely to cause chronic diseases or illness, or

(c) the malfunction, malformation or disfigurement of a part of a person's body, or

(d) a condition or malfunction which results in a person learning differently from a person without the condition, or

(e) a condition, illness or disease which affects a person's thought process, perception of reality, emotions or judgment or which results in disturbed behaviour,

and shall be taken to include impairment which presently exists, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person;".

The Minister will be aware, from having looked at the amendments, that we are going over some ground which has already been covered in the Dáil; nevertheless, it is important that we tease out these matters in the Seanad.

I referred on Second Stage to the disquiet among professional organisations involved in the care of people with disabilities about what they perceived as the overly medical definition of disability in the Bill. I propose to insert into the Bill a statement that disability means "the impact on an individual of a duly recognised physical, sensory, psychological or mental impairment which affects or substantially reduces their prospects of securing, retaining and advancing in employment". That is followed by a list defining "physical, sensory, psychological or mental impairment" which is already contained in the Bill.

I stated on Second Stage that CARE, the association of the parents and friends of mentally handicapped people in Kildare, expressed the opinion that everybody regarded the definition in the Bill as unsuitable and unworkable, particularly in the context of employment. The members of CARE and of other associations dealing with mental and other handicaps are very anxious that the definition should be amended to a more functional definition of disability. An alternative definition was sent to the Department which had the backing of ICTU and IBEC. The chief executive of CARE told me that if the Bill were passed with the medical definition of disability unamended it would be likely to be used in other legislation and that the overall situation would be disastrous.

I ask the Minister to view the amendment sympathetically. I am sure he is aware of the alternative amendments proposed by some organisations and I am not saying that this amendment is the only way to deal with the matter. However, the fundamental point is that the existing definition is a purely medical one which is too restricted and limited. The amendment seeks to insert a broader definition.

Minister for Equality and Law Reform (Mr. Taylor)

I have been helped in the development of this definition by two main sources. The first is the constructive contributions of interest groups and individuals on the question of a definition of disability for the Bill. The other source has been the experience in other countries with disabilities legislation.

When I first looked to develop a definition of disability, I sought to achieve a suitably broad provision. My intention was to address prejudice in respect of any disability, present, past, future or assumed. The definition of disability which I have provided in this Bill offers a high degree of clarity and can be practically applied in the legal context. If I had been preparing a policy document or a sociological report I probably would have opted for a different definition. I am, however, preparing legislation and I want the definition to be effective and to place within its scope as many people with disabilities as possible.

When I looked at definitions of disability in other jurisdictions, for example, in the US Americans with Disabilities Act, I was struck by the focus on capacity to perform work. On examining its application in practice I found that it was underpinned by very extensive medical considerations in the form of regulatory definitions and guidelines. I was also concerned by the potentially restrictive nature of concepts such as "substantially limits one or more major life activities" which are central to the US Act.

I can see, of course, that such a focus, which is replicated in the UK Disability Discrimination Act, 1995, is targeted at the protection of people with more substantial disabilities. Such persons must be covered by the Bill. However, I also wanted to ensure protection for persons with lesser disabilities, or none, who can also be subjected to unequal treatment in employment because of prejudicial attitudes related to their condition, or their perceived condition. For that reason, I was attracted by the Australian definition which has been adopted in the Bill.

A number of concerns have been raised, however, about the implications of applying the definition in the Bill. Essentially, the concerns centre around the danger that such a definition will lead to widespread application of medical assessments by employers. As I mentioned, the approach in other countries, such as the US or UK, to a legal definition of disability in anti-discrimination legislation has not obviated the need for supplementary medical regulatory provisions.

In order to clarify the real experience of applying a definition such as the one in this Bill, my Department has been in contact with the Australian authorities who have had in place a similar definition since 1992. The experience of the Human Rights and Equal Opportunity Commission in Australia is that the definition has been widely accepted and that it has not resulted in the introduction of inappropriate medical assessment. They deliberately avoided any attempt to introduce a definition which would lead to intrusive assessments. The aim of the Australian authorities, like my own, has been to allow for the widest possible inclusion under their Act.

It is commendable, as Senator Dardis is proposing, to want to give protection under the Bill to persons whose impairment has a serious disadvantageous impact on their employment prospects. However, the Bill gives this protection under the present definition. It would diminish the value of the Bill considerably if the definition of disability, while encompassing people with more serious disabilities, excluded from its scope completely people with less serious disabilities. I am anxious to ensure that many others whose impairment, past, present, future or assumed, has no impact on their capacity to undertake employment will also be able to call on protection against irrational prejudices. I hope Senators will agree with this approach and that Senator Dardis will withdraw his amendment.

Mr. Norris

I support Senator Dardis' amendment, although the Minister has given a reasonable explanation of the technical reasons he does not feel compelled to accept it. However, he seems to accept some of the reasoning behind it. I have received a number of communications from people in this area, although I did not put down an amendment on the matter. Their clearly expressed concern was that the definition of disability exclusively followed a medical model. They felt this was very limiting and were particularly concerned about the social impact disability might have and they wished to have this included in the Bill.

They also spoke about the importance of the environment in which they worked. I wish somebody in this building would take note of that. I am beginning to get a cold; I do not know why the House is like a greenhouse. These are not the most inspiring conditions in which to work nor is the telephone ringing in the pocket of one of my colleagues.

Mr. O'Toole

The matters raised by Senator Norris are not covered by the Bill. The discussion has gone on at length as to whether the proposal put forward by Senator Dardis or the narrower definition in the Bill is more acceptable. I have looked closely at the wording and I am very concerned. There is a narrowness as well as the looseness in the definition in the Bill which I will attempt to explain. I am attracted to Senator Dardis' amendment because the definition of disability means "the impact on an individual of a duly recognised physical, sensory, psychological or mental impairment."

The education service has spent 30 years trying to convince various authorities of the special needs of children to the point where it becomes very difficult to do so and the Minister's Bill does not make it any easier. The long title of the Bill refers to access to vocational training which is related to education; I have an interest in this.

Section 2(1)(e) states that disability means "a condition, illness or disease which affects a person's thought processes, perception of reality, emotions or judgment or which results in disturbed behaviour". On reading the various clauses of relevance, disability means "a condition which affects a person's emotions". Somebody falling in love could find themselves being described as being disabled by this legislation.

Mr. Taylor

The same words are used in Senator Dardis' amendment.

Mr. O'Toole

Except that Senator Dardis takes the precaution of putting in a lead in clause which refers to the impact on an individual and duly recognises impairment. The example I gave could not be regarded as an impairment. There is a need for a lead in of that type and to deal with such general issues. The question of emotional dysfunction is important. I agree with the Minister that people who have emotional difficulties need to be covered. I have taken this example to show him that the words used in an attempt to be narrow are loose in certain situations. The reason the Minister has given for it is to hold it to a definition that is narrow, confined, restricted and therefore, can be implemented. There is a great deal of logic in that but it does not do that. The lead in in Senator Dardis' amendment, that the impact on an individual of a duly recognised physical, sensory, psychological or mental impairment, is important. Will the Minister consider this before dismissing the amendment? It adds substantially to what is in the Bill.

Professor Lee

I support Senator Dardis. The definition would be very wide if it were to read a condition which affects a person's emotions. Senator Dardis' amendment in one respect is more focused because it is a duly recognised impairment which affects or substantially reduces an individual's prospects of securing, retaining and advancing in employment. That secures the Minister's objective more effectively than the definition in the Bill. Did the Minister say that what he proposes in this Bill is the Australian definition which has been chosen in preference to other definitions? Has there been an opportunity to compare the functioning of the legislation in the various jurisdictions which the Minister considered as distinct from comparing the phraseology in the Acts? Can one say how satisfactorily the legislation has functioned in the different jurisdictions? Is this preferred in a comparative vacuum in terms of consequences?

Mr. Dardis

There is no difference between my objective and that of the Minister. The objective is to ensure people with disability are given the opportunity to seek employment and are not disadvantaged in any way. I am surprised that all the expert groups in this area appear to be unanimous in what they suggest should be in the Bill and I cannot reconcile that with the resistance to the views of the expert groups.

It has been drawn to my attention that there are three alternative definitions. ILO Convention 159, Vocational Rehabilitation and Employment Disabled Persons, 1983, which was ratified by the Government in 1996, states that "a person with a disability means an individual whose prospects of securing, retaining and advancing in employment are substantially reduced as a result of a duly recognised physical, physical, sensory, psychological or mental impairment". The UK Act, referred to by the Minister, defines disability as "a physical or mental impairment which has a substantial and long-term adverse effect on a person's ability to carry out normal day to day activities". People who have a disability and those who have had a disability but no longer have one are covered by the Act. The third definition is that disability means "any person with an impairment of a physical, sensory, mental or intellectual nature who faces obstacles to participation on equal and equally effective terms with all others in all aspects of life of the community". That is the draft resolution of the European Council on equality of opportunities for people with disabilities.

A wide spectrum of opinion supports what I say and I am surprised that there appears to be a resistance to the unanimity of view which exists within the organisations caring for people with mental disability in Ireland and which is reinforced by international conventions and laws. The Minister referred to significant mental disability. CARE has placed severely mentally handicapped people in employment in supermarkets and other businesses in Newbridge. The experiment has been highly successful. Superficially, one might have said, as recently as five years ago, that it was not possible to do that but it has hugely beneficial effects on the patients, their families and the businesses in which they have become involved. When there appears to be such unanimity among the caring organisations and a coherence between the various definitions, my main problem is that it is not taken on board in the legislation.

Mr. Taylor

There is no unanimity of the type suggested by Senator Dardis; it does not exist. I had a lengthy meeting with the Disability Federation of Ireland, one of the major organisations catering for people with disabilities whose chief executive is Mr. Roger Acton. Initially, the federation took a position relatively similar to the line taken by Senator Dardis in the amendment. I went through that form of definition, which it also put to me, in detail and pointed out its difficulties and shortcomings from the point of view of people with disabilities. The federation understood the point I was trying to make and went off to consider it. I received the following letter, dated 20 November 1996:

Re: Employment Equality Bill, 1996.

Dear Minister,

I am writing to you in relation to our meeting last week when we discussed in detail certain aspects of the Employment Equality Bill and in particular the definition of disability for the purposes of the Bill.

I have now had an opportunity to discuss this issue with my colleagues and members of my board. We have considered very carefully your arguments in support of the definition as described in the Bill which we find to be persuasive. Given that we are all working together to enhance the employment opportunities of people with disabilities, we feel on reflection that we can now accept the definition as outlined in the Bill.

I have arranged to have a copy of this letter sent to the Social Affairs Committee for their information.

Yours sincerely,

Roger Acton.

Deputy O'Toole made a point with which I fundamentally disagree.

Mr. Norris

He is a mere Senator.

Mr. O'Toole

I would hate to be demoted to the Lower House.

Mr. Norris

Some people think he is a social misfit.

Mr. Taylor

I am so overcome by his campaign so far that perhaps I am thinking too far ahead. I disagree with his statement that the definition in the Bill is too narrow and narrower than the definition espoused by Senator Dardis. He mentioned looseness in the Bill. I fundamentally disagree with him on both issues because the reverse is the position. The broader definition is the provision in the Bill and the narrower definition is the one espoused in good faith by Senator Dardis. I understand his reasons and I am grateful to him for tabling the amendment because it gives us an opportunity to discuss this issue.

The lead in to the provision, which some Members consider a desirable aspect of the definition, relates to the meaning of disability. Some doctors may recognise a condition while others may not recognise it. The amendment states "duly recognised" but my definition does not include that term. Senator Dardis' definition continues "which affects or substantially reduces their prospects" of obtaining employment. I do not mind whether their prospects of obtaining employment are substantially or only a little reduced. The protection of the Bill must extend to a person whose prospects of employment are only somewhat and not substantially reduced, as my definition would require. One can envisage a situation where a person has a scar which is unsightly. One could argue that it does not affect their capacity to work. However, they would be omitted by Senator Dardis' definition because their capacity for work would not be reduced at all, let alone substantially reduced. Those people require protection.

The basic distinction between our positions is understandable. The politically correct wording of Senator Dardis' amendment, although it may be desirable, would be suitable and appropriate in a social report or a learned analytical document. However, the document before the House is not a social report. It is primary legislation and my objective is to provide the protection of the Bill to the widest possible range of people who need it. That is the purpose of the Bill.

Various criticisms have been made of the definition. However, the one criticism which has never been made is the one I would accept, that is, if anybody criticises the definition contained in the Bill on the basis that it omits an important category of people who will be denied the protection of the legislation and who must be included. I would be most concerned if a shortfall in the definition on that account was pointed out. However, alternative definitions, such as the UK and ILO definitions, which I considered in great detail, omit a huge number of people who are given protection by the Bill.

Senator Dardis' definition would omit people whose prospects of work are not substantially reduced. I do not want to do that. I want to provide the protection of the law to any person with a disability, regardless of whether it substantially, moderately or slightly reduces their prospects of employment, if they are discriminated against on that basis and can establish that to the satisfaction of an equality officer. These are my reasons for sticking with the definition and I remind Senators that this is a legal document which is not intended to assuage anybody's feelings. Its intention is to provide legal rights and protection to every person who may need it. I must have great caution and resist any suggestion of reducing the accessibility of the Bill to the people I seek to protect.

Professor Lee

I have a great weakness for social documents and analytical persuasions which the Minister finds irrelevant in these circumstances. I wish to make a number of points arising from his response. I also want to be fair all round and to ensure that nobody can be discriminated against on the grounds of any disability. However, I want to strike the fairest possible balance from employers' and workers' points of view. I have an open mind on this matter in light of the arguments which have been made. It is important to tease out these aspects as extensively and in as much detail as possible.

Given the Minister's points on the general covering clause, I do not understand the meaning of "duly recognised". He made a fair point in that regard and I would drop the term if I thought the rest of the phrase was worthwhile. Perhaps Senator Dardis intends a different definition but the amendment refers to disability, meaning "the impact on an individual of a duly recognised physical, sensory, psychological or mental impairment which affects or substantially reduces their prospects...". The Minister made a fair point about the phrase "substantially reduces". However, the phrase used in the amendment is "affects or substantially reduces", not "affects and substantially reduces". I suggest that the term "substantially reduces" could be removed and the amendment would then read "which affects their prospects". That would cover people's disabilities be they slight or substantial and the general thrust of the qualification would remain.

I wish to query the meaning of the term "condition" used in paragraph (e) as distinct from that of "illness or disease". If the term "illness or disease" is removed, the paragraph reads "a condition which affects a person's thought processes, perception of reality, emotions or judgment or which results in disturbed behaviour". That is an extremely broad definition.

Mr. Taylor

It is intended to be.

Professor Lee

If one were facetious, which I am not disposed to be, one could refer to the current atmosphere in the Houses of the Oireachtas, mention some of the things which affect people's thought processes, perceptions of reality, emotions or judgment and discover a number of Members whom might be deemed to be affected by that condition. I suspect the phrase "a condition" opens the possibility of legal action in a number of cases. I accept and agree with the Minister's desire to be as inclusive as possible. However, I wonder if it is beyond the bounds of legal definition to find a phrase which is not so vulnerable to challenge?

Mr. Taylor

If Senator Lee wishes to table an amendment on Report Stage to remove the word "condition", I will give it due consideration. However, this would have the effect of narrowing the definition and I am reluctant to do so.

The Senator also inquired about the American experience regarding definitions. My Department has been informed by Mr. Bob Silverstein, an adviser in the US Senate, that the case law made by the Americans With Disabilities Act has excluded a considerable number of people from protection because of the requirement to prove an impact on the person's functioning. My amendment would provide protection to those people who have been excluded by the approach taken in US case law.

Mrs. McGennis

The subject of disability was widely discussed following the publication of the Bill. To be fair to the Minister and the Government, the Bill was sent to the National Social and Economic Forum for its observations. Were those observations taken on board and are they incorporated in this definition? I attended an Irish Congress of Trade Unions conference at which concerns were raised about dyslexia as a disability. Will the Minister confirm that paragraph (d) covers people suffering from dyslexia in terms of discrimination?

Mr. O'Toole

Two substantial issues have emerged during this debate. I am glad the Minister highlighted the point that there is a looseness in the Bill. However, one must consider the ridiculous interpretations which can be used at certain levels. As the Minister stated, the Bill is a legal document. On previous occasions I supported the Minister when people stated that the language used in the Bill was inaccessible. I pointed out it is a legal document and the language used is not intended to be accessible because such a document requires legal interpretation.

Having said that, however, I return to my earlier point about "a condition which affects a person's emotions" which is too loose a definition. Many winners of the national lottery might be disabled in the sense that winning a large prize affects their emotions. That is on one end of the scale, but consideration must also be given to issues on the other end.

I concede the Minister's valid point that there is a weakness in the amendment in respect of the term "a duly recognised... impairment". I also believe the use of the word "condition" is too loose and the section must be dealt with again on Report Stage. I urge the Minister to indicated the he will reconsider the matter. Valid issues have been put forward and we want to get it right. No one is attempting to pull a fast one. The word "condition" is too loose in its usage and the term "duly recognised" is unclear and has created difficulties for many educationalists since 1953 in attempting to describe the problems people experience through their conditions, disorders etc.

Senator Dardis' use of the term "impairment" creates a certain direction while people will argue that the Minister's use of the phrase "illness or disease" could be framed somewhat differently in politically correct language. I put it to the Minister that two significant issues have arisen during the debate on the amendment and I ask him to consider them further before Report Stage.

Mr. Dardis

I support the point raised by Senator O'Toole that it is everyone's intention to ensure that the legislation is good, will be improved if necessary and must secure people's rights under law. It is important to tease out these matters, and the debate emphasises the fact that we have concentrated on areas on which we might otherwise not have concentrated in respect of the word "condition". I had also intended to raise the issue of dyslexia, to which Senator McGennis referred, and other conditions. In some cases medical opinion might be divided as to whether a condition actually exists. I merely wish to explore that area with the Minister, whose reply has allayed some of my fears about the intention behind the wording. I will await his next reply before considering whether to progress to pressing the matter to a vote.

Mr. Taylor

In reply to Senator McGennis, I believe dyslexia is probably covered under the definition of the word "condition" about which Senator Lee had some doubts. This highlights how careful one must be. Initially Senators stated that my definition was too narrow while their subsequent contributions have swung to the proposition that it is too wide.

Mrs. McGennis

It seems to suggest that the definition is correct.

Mr. Taylor

Yes.

Mr. O'Toole

It is narrow in places and wide in others.

Mr. Taylor

I will keep the matter under review between now and Report Stage. Considerable care and thought were invested in the definition and my main concern is not to ignore any group or person to whom the protection of the Bill is necessary.

Mrs. McGennis

Was there anything in the NESF's recommendations which the Minister could not take on board in terms of the disability definition?

Mr. Taylor

It does not accord with the NESF's definition, which made submissions on various aspects of the Bill. Each of those submissions was given careful consideration and the end result is before the Senator.

Mr. Dardis

I wish to clarify the issue of "condition" and the difference of medical opinion as to whether a condition exists. Are there cases where the manifestation of a disorder might not be regarded as a "condition" by the medical profession? There seems to be a grey area regarding what is a "condition" in medical terms. I accept that this is a slight contradiction of my initial contribution when I wanted to move away from a narrow definition.

Mr. Taylor

I am glad Senator Dardis wants to move away from the main medical definition because it is important to do so in a legal document designed to confer rights on people. I do not know the medical answer because I am not a medical person. The phrase, "doctors differ and patients die", could be applied in this case in that there could be disparities of opinion in particular situations. My definition is meant to be widely based because my objective is to ensure that people who need the protection of this legislation and are reasonably entitled to it are not denied it for definition reasons. I think I have achieved that. I will keep the points made by Senators under review between now and Report Stage.

Amendment, by leave, withdrawn.

An Cathaoirleach

Amendments Nos. 2, 3, 11, 12, 13 and 14 are related and may be discussed together.

Mr. Norris

I move amendment No. 2:

In page 10, subsection (1), lines 6 and 7, to delete the definition of "sexual orientation" and substitute the following:

"‘sexual orientation' means preferences for sexual behaviours which are not prohibited by law;".

This amendment attempts to define sexual orientation. I understand the Minister did not wish to use a definition which involved listing either excluded or included sexual behaviours or orientation groups. The definition he has included is heterosexual, homosexual or bisexual, which is based on New Zealand law. This was either suggested or supported by GLEN. However, the equality campaign contacted me and it suggested its preference for the definition, "‘sexual orientation' means preferences for sexual behaviours which are not prohibited by law". I like that for its clarity and also because it gives coherence to the Bill.

Amendment No. 12 seeks to amend section 16(4) which states: "Nothing in this Act shall be construed as requiring an employer to recruit, retain in employment or promote an individual if the employer is aware, on the basis of a criminal conviction of the individual or other reliable information, that the individual engages, or has a propensity to engage, in any form of sexual behaviour which is unlawful". The Minister has already included a form of words similar to that which I am proposing. It seems there would be a legal and stylistic consistency involved if we were to include a definition which is subsequently enshrined by implication in the law. Amendment No. 2 states: "‘sexual orientation' means preferences for sexual behaviours which are not prohibited by law", while the Minister uses the phrase "engage, in any form of sexual behaviour which is unlawful". These seem to be similar but that is coincidental.

Amendment No. 12 seeks to delete "other reliable information" and substitute "on the basis of a criminal conviction or information from designated public bodies". I hope the Minister, who sought to widen the Bill in his earlier definitions, will be persuaded to narrow it because it is open to wide interpretation. What is reliable information? From what source does this information come? Could it be construed as third party information from a subjective judgment by a reliable person implementing this? Could it be a type of visionary information — a message from one of the persons in the Trinity? This might be and in some cases is regarded as reliable information. This is so vague and wide it could be susceptible to abuse. The Minister should make it clear and specific. It should not read "reliable information" in a subjective sense, but "on the basis of a criminal conviction [which is clear and factual] or information from designated public bodies". In other words, the Minister must determine the reliability of the source of the information and he must be certain about it.

An Cathaoirleach

There is a correction to amendment No. 3. It should read "line 26", not "line 24".

Mrs. McGennis

My amendment seeks to achieve the same objective as that tabled by Senator Norris, although his wording is probably more succinct that mine. I am trying to ensure that sexual orientation is interpreted as the Minister intends it to be interpreted and that it shall not apply to paedophilia or to an offence involving sexual abuse of persons under the age of 18.

Mr. Norris

That is covered in my amendment.

Mrs. McGennis

I am willing to support Senator Norris's amendment if mine is unacceptable. It is important that this legislation does not exclude sexual behaviours which are not prohibited by law.

Amendment No. 14 seeks to achieve a different objective from that in amendment No. 12. Why does section 16(4) refer specifically to "sexual behaviour which is unlawful"? If somebody intends employing a person who has a criminal record for murder or a similar serious offence, that should also be taken into account. I propose to delete the word "sexual" because any form of unlawful behaviour should be taken into consideration.

Mr. Dardis

I support Senator Norris's amendment on sexual orientation. I am also concerned about section 16. To insert "other reliable information" amounts to a busybody's charter. We must be extremely careful not to discriminate against a person based on what someone said. I am aware that a balance must be struck, but people who might be vulnerable must be protected. If one combines a "criminal conviction" and "other reliable information" with "a propensity", we are broadening it further. It is too wide to suggest that we could have reliable information that somebody has a propensity to do something. I am interested to hear the Minister's reply.

Senator McGennis's amendment seeks to delete "sexual". However, if that is deleted and "other reliable information" is left in, it would be even more damaging. If the word "sexual" is deleted, which it should be, it would be essential to delete the words "other reliable information" because it would open the door and allow people to make allegations against others and, as a result, the latter would be discriminated against.

Professor Lee

Section 16(4) states:

Nothing in this Act shall be construed as requiring an employer to recruit... an individual if the employer is aware, on the basis of a criminal conviction of the individual or other reliable information, that the individual engages, or has the propensity to engage, in any form of sexual behaviour which is unlawful.

If people do not engage in these acts they cannot be unlawful. If we were all judged on a propensity for unlawful behaviour how many of us would pass that test? This is a very loose formulation of words. It invites someone to spread rumours about a personal enemy. I am also concerned about the words "reliable information" and "a propensity to engage". One cannot have a criminal conviction based on a propensity, so who determines the reliability of information on a propensity? Whatever the intention of this wording there are potential negativities which are disturbing in terms of civil liberties.

Mr. Taylor

Senator Norris has tabled an alternative definition for "sexual orientation". Notwithstanding the merit of the definition, I am not convinced that it is preferable to the existing definition.

When the Bill was originally published I was reluctant to attempt a definition of sexual orientation in the absence of a legal model elsewhere in Irish law. However, having listened to the arguments of Deputies and following representations by the NESF, GLEN and ICTU, among others, I have decided to bring forward the current definition.

I appreciate that Senator Norris's proposal successfully avoids listing forms of sexual relations or behaviour. However, it does so by reference to what is not prohibited by law. I resisted such an approach when preparing a definition as I did not wish to associate sexual orientation with prohibited unlawful behaviour. I sought to focus on the inherent sexual orientation of a person whether they are sexually active or not.

I was also impressed that the references to specific and widely recognised forms of orientation ensured a degree of clarity for the definition which the Senators amendment would not appear to achieve. In the circumstances I would request the Senator to reconsider this proposal.

There is a logical and legal difficulty with Senator Norris's definition. The definition in the proposed amendment recognises one sexual orientation, that is, the sexual orientation comprising of all sexual preferences not prohibited by law. This definition will make section 6 of the Bill defunct so far as outlawing discrimination on the grounds of sexual orientation. This is because that section was constructed to allow a person establish discrimination by showing that there exists less favourable treatment between individuals based on differences in sexual orientation. If it is defined in law that there is only one category within the sexual orientation ground, the possibility of a comparator for the purpose of showing less favourable treatment is ruled out and discrimination could not be established under section 6. Perhaps these logical and legal difficulties with the definition will help to convince Senator Norris to withdraw the amendment.

I considered Senator McGennis's amendment in the Dáil. At the time I explained that, given the definition now included in the Bill, there is no need to qualify section 6(2)(c). Section 16(4) clearly protects employers and clients, including children, from sexual abuse. The definition of sexual orientation sets out forms of sexual orientation. Neither can be used to defend persons who admit to being a paedophile or who have a conviction for an offence involving the sexual abuse of a person under the age of 18 in work situations which involve access to, or control of, minors.

It is undesirable to associate the term "sexual orientation" with unlawful behaviour as does this amendment. I appeal to the Senator to review her proposal and be assured that the protection she seeks has been provided for elsewhere in the Bill.

Section 16(4) of the Bill, as amended in the Dáil, encompasses both of the instances which Senator McGennis is seeking to cover in her amendment. Section 16(4) encompasses the admission of a person that he or she is a paedophile as well as persons who have been convicted of sexually abusing a minor. Section 16(4) would also exclude from the scope of the legislation a person who has a history of paedophilic activity but no convictions, as well as any person who has been convicted of statutory rape. I appreciate the Senator's concerns to ensure adequate protection for that very vulnerable section of Irish society — children.

I have sought to achieve a similar effect in section 16. My approach to this issue has been to distance the concepts of sexual orientation and sexual behaviour under the Bill. I hope that Senators will agree to withdraw their amendments and allow the matter to be tackled in the Government amendment. I would like to thank Senators Dardis and Norris for their amendments and affording me another opportunity to reconsider the issue of reliable information.

No one who has lived in Ireland over the last five years can be in any doubt that legislators must be acutely aware of the need to ensure that full protection against abuse of our children or other vulnerable groups must not be compromised in bringing forward new laws. I acknowledge that the term "reliable information" might be regarded as insufficiently tight. At the same time I am faced with the dilemma that perpetrators of abuse, against whom we want to protect children and others, are known to cleverly disguise their tendencies with devastating consequences. Obviously, heresay or loose comments about an individual are not reliable information. However, given the importance of voluntary interests in care services, it would be unwise to rule out the possibility that reliable information might be available from such sources. Many of these voluntary interests provide professional services.

Furthermore, in view of the open nature of the labour market, the proposed amendment would seriously limit the prospect of securing information on abuses from authorities or other competent sources abroad. Irish employers involved in care services have been made increasingly aware of the dangers in this area and their recruitment and selection techniques are adapting to meet these dangers and to ensure that the high standards of care associated with Irish care services are maintained. In all the circumstances I am reluctant to drop the existing text on reliable information and I would ask that it be retained accordingly.

For the same reasons I am reluctant to follow Senator Lee's proposal to delete the reference to "propensity to engage". I accept the inherent difficulty in using this terminology but do not apologise for seeking to be extra cautious in this very sensitive area. Ultimately, one can resort to the Director of Equality Investigations to resolve disputes in this area about reliable information or "propensity to engage".

Senator McGennis's amendment proposes to broaden the scope of the section beyond sexual behaviour and I was very interested in the Senator's rationale for that amendment. When I amended section 16 in the Dáil I sought to protect an employer from having to employ, or retain in employment, persons who engage in unlawful sexual behaviour. While it could be argued that nothing in the Bill would require an employer to recruit or retain such a person in employment, I was satisfied that such is the nature of this behaviour and given the devastating consequences for victims, an explicit provision was warranted. Senator McGennis wants this provision extended to cover all unlawful behaviour. There may be merit in such a proposal but I would not like the very explicit protection against unlawful sexual behaviour overshadowed because we have cast our net too widely with the provision.

Mr. Norris

I thank the Minister for his detailed and courteous reply. I did not hear all of it so I may misinterpret him, but I cannot misinterpret his courtesy.

Amendment No. 2 is important because Senator McGennis introduced an amendment related to paedophilia and there is sometimes confusion in the public mind about homosexual behaviour, bisexuality and paedophilia. My amendment is much clearer and defined legally because it refers to sexual behaviours which are not prohibited by law. The practice of paedophilia is clearly covered by my definition, as are other behaviours which are disapproved of strongly by society and held to have a damaging impact on persons engaged in them. The amendment also fits in with further sections of the Bill which target the Bill precisely on the area where it is supposed to function.

Accordingly, I urge the Minister to reconsider. I will not press this to a vote now as I reserve the right to reintroduce this or a similar amendment on Report Stage. That gives the Minister time to consult his advisers on whether he can accept this amendment or a variation of it. If the Minister comes up with a formula that meets the situation, then so much the better. The present wording is quite reasonable, but the wording of my amendment is better. It is part of the function of this House to refine the focus of legislation, although I accept that the broad outline of this legislation is good.

I feel stronger about amendment No. 12 and the Minister has strengthened that by accepting one needs to focus on what is "reliable information". In an access of sentiment, with which I concur — although it is dangerous to allow too much of it — he spoke of child sex abuse. That is an argument as much on my side as the Minister's if one looks at it clinically. There have been repeated cases where apparently convincing information was brought by reliable sources against parents that proved subsequently to be incorrect, false or injudicious. The Minister spoke of the devastation of the victims, with which everyone sympathises. What about the devastation visited upon parents who are falsely accused by what Senator Dardis described as busybody neighbours? I favour concerned statutory bodies being included in this and my amendment covers that. My amendment suggests that "other reliable information" be deleted because there is a question mark about what is "reliable information"; that is, capable of a subjective judgment. The words to be substituted are: "on the basis of a criminal conviction or information from designated public bodies". One presumes these would include health boards, social workers, etc. Their information would be taken into account by my amendment, which meets the Minister's concern. As it stands, the Bill does not meet my concerns because I do not know what constitutes "reliable information" in all circumstances and in every institution or situation of employment in the country. We have seen considerable and whimsical discrimination on the grounds of prejudice and we will not enter a brave new world when this Bill passes. Prejudice will not be cleared away to enable us to start from "year zero" by this Bill. We will have a world where there is still prejudice, discrimination, suspicion and mischief-making. In those circumstances it is highly dangerous to leave a phrase as vague as "reliable information" in the Bill without nailing it down on the basis of criminal conviction or information from designated public bodies. That covers the Minister's anxieties, which we all share. No Member wants to provide a shelter for sexual abusers of children, but equally no Member wishes to expose people inadvertently to situations where, when information that appears reliable turns out not to be so, devastation is visited on those families.

I feel strongly about this amendment but will not press it to a vote. I will almost definitely reintroduce it on Report Stage.

Mr. Dardis

In his reply to Senator Norris, the Minister made a point with which I concur. He distinguished between behaviour and orientation, saying it would not be sensible to use behaviour to describe orientation. Behaviour is much more than orientation. However, I am still uncomfortable about the unamended subsection (4) of section 16 and detected a certain discomfort on the part of the Minister when he replied. He realises some of the dangers implicit in this.

There is no debate about our desire to protect children from paedophiles but the saying "two wrongs do not make a right" is appropriate. There is the capacity here to destroy somebody's reputation and we must be very careful to protect young people while also ensuring that reputations cannot be maliciously destroyed. Senator Norris made the point about parents in England who answered serious charges and were subject to public scrutiny and odium; it was subsequently found that they were not responsible.

It is a question of finding a balance; I think there is some middle ground here but this matter of reliable information based on a suspicion is one with which I find difficult to come to terms. I suggest that there is some other way of achieving this. The Minister made an important point about voluntary as well as statutory public bodies having information available to them. I would be prepared for designated public and voluntary bodies to disclose information, but allowing somebody to make a statement which could then be acted upon would open a Pandora's box.

Mrs. McGennis

I too agree with the Minister about the sexual orientation question. He is correct in saying that a distinction should be made between sexual orientation and sexual behaviour. To follow up on the point that Senator Norris made, there is no confusion in my mind about paedophilia and homosexuality. I would like to put it on the record that, in the main, the perpetrators of paedophilia are heterosexual. It was not my intention to imply that there is any link between paedophilia and homosexuality. I am prepared to withdraw my amendment in so far as the Minister is saying that the definition and the safeguards are related to section 16(4).

The reason for my proposed removal of the word "sexual" was that I was not aware that its inclusion strengthened what the Minister was trying to achieve. The Minister has achieved what I was attempting in my amendment.

A certain gentleman used to live in my area — I think he is referred to as "the Warehouse Man" and an unsuccessful attempt was made recently to seize some of his assets. There are many computer companies in my general area. What would happen if this man applied to one of these computer or pharmaceutical companies and, under section 16, was willing and competent to undertake the job, but I, as an employer, decided that under no circumstances was I having this particular person in my employ? Am I not permitted under this legislation ——

Mr. Taylor

Does the Senator have reliable information that he is a criminal?

Mrs. McGennis

If "reliable information" means that, then I certainly have. I withdrew "sexual" from section 16 (4) because I was not aware it strengthened the orientation definition and gave protection to minors. I know the Minister is erring on the side of caution in relation to reliable information. Senator Dardis' proposal of making voluntary as well as statutory bodies disclose information may be necessary to ensure that nobody is victimised. The most vulnerable are children and I, too, would tend to err on the side of caution.

I can sympathise with somebody who is wrongfully accused. If I, as an employee, were to go the Employment Equality Agency and claim I was discriminated against on the basis of reliable information which had come from a third party — I know it is in the Bill in relation to Civil Service, local authority or semi-State employment— that third party information need not be made available at a mediation hearing. This reliable information might not necessarily be given to the person who is complaining of discrimination.

Mr. Taylor

The equality officer is entitled to all the information.

Mrs. McGennis

I know, but I, as the complainant, am not entitled to be given copies of this additional information; that is my understanding from reading other sections of the Bill. I suppose the Garda Siochána or the relevant health board could be deemed to be other agencies.

I totally accept what the Minister is saying about orientation; I am still uncertain of the reliable information clause though I know why the Minister is putting it in. As an employer, I would not like any employment equality tribunal, agency or officer to tell me I was obliged to employ any man or woman because they were willing to and capable of doing the job, in spite of the fact that they were one of the biggest criminals in the State and that knowledge might be based on conviction or reliable information. I would like the Minister to tell me if I, as an employer, would be catered for under this Bill.

Ms O'Sullivan

On amendment No. 2, I think the Minister explained very well why he is specifically defining sexual orientation. The NESF recommendations also recommend that sexual orientation be fully defined so as to clarify which groups are being offered protection under the legislation.

With regard to section 6, if somebody is saying they are being discriminated against on the basis of the definition of sexual orientation which Senator Norris is proposing, then there would not really be any difference between the person alleging they have been discriminated against and the rest of the workforce. If, for example, somebody was homosexual and alleged they were being discriminated against because of that, if you simply use the definition "sexual behaviours which are not prohibited by law" that definition probably covers all the other people among whom the person is being discriminated against. In other words, the allegation is that other employees are being favoured. I think Senator Norris's proposal removes the protection which is intended in that section. The Minister explained it better than I.

On section 16(4), I fully understand Senators' concerns. If one could get a definition of the various kinds of bodies that could provide the reliable information that would be preferable to having it remain as general as it is. Section 16(4) says that "if the employer is aware on the basis of criminal conviction, etc."; it is not a suspicion it is an awareness. What we are discussing here ties in with the discussion we had on the mandatory reporting of child abuse. It is a matter of striking a balance between the rights of the person who may be wrongly accused and the rights of children and the need to protect them. I concur with Senator McGennis and the Minister in saying that the protection of children has to be paramount.

One obviously does not want to exclude somebody from a particular job because of information one may consider to be reliable but which may not be. However, I would tend to err on the side of the protection of children. For example, somebody might be looking for a job in a school or on a scheme where they would be looking after children and the employer might feel they had reliable information — not necessarily from the Garda or the health boards because of lack of proof or whatever — that the person had been engaging in unlawful activity. If the employer genuinely felt they wanted to protect the children from this person——

Mr. Norris

Is the Senator relying on feelings? That is unacceptable. One must have something stronger than feelings in order to deny somebody a job. There must be evidence.

Ms O'Sullivan

The wording in the subsection is "is aware" and it refers to reliable information, not feelings. It is an awareness based on reliable information. If information is forthcoming from a reliable, decent and credible source — it may not be a statutory body but it may be definite information——

Mr. Norris

Try telling that to Eileen Flynn.

Ms O'Sullivan

There has to be some provision that allows a person to make a decision not to employ somebody in that situation. If we can get a sufficiently broad definition that would include voluntary bodies, perhaps that would be satisfactory. We must ensure that legislation is not used in an unintended manner.

Mr. Quinn

I wish to reflect the views of potential creators of employment in relation to amendment No. 12. While the objective of this Bill is worthy I am concerned that, with the best will in the world, it will result in the taking of steps to avoid litigation, especially by small businesses. This is relevant to survival in business, particularly in a small business which does not have the back-up of a personnel department or reliable lawyers. We are in danger of creating a whole raft of litigation every time somebody advertises a vacancy. Take the case of a small business person who places an ad in their window, receives 20 applications and decides on balance to take applicant No. 6. If we open the doors too widely it is likely that within a short time it will become common place for the other 19 to automatically claim discrimination on the grounds that lawyers advertise "no foal, no fee". This will happen regularly if we make it too easy for non-accepted applicants to sue in the knowledge that they might win. We must be cautious about making it too easy to sue. The result will be that no advertisements will appear and we will return to the tradition of "who you know".

Senator McGennis spoke of the employer and used the term "warehouse man". I am not sure what that meant but I assume——

Mrs. McGennis

It is a gangster.

Mr. Quinn

The term "reliable information" should stay. Senator Norris will disagree when I say the small employer has a gut feeling, a hunch that by taking candidate A rather than B or C they have a better chance of surviving. If every time the employer advertises they are sued, they will stop advertising. The anti-discrimination objectives of the legislation will be avoided by those seeking employees because they will not advertise at all. They will use other ways of finding employees.

We must be cautious about strengthening this Bill in any aspect. It is necessary to remember that there are ways around this legislation which will be used by smaller employers in particular who will avoid advertising in order to prevent criticism of them. When they want to take on a new employee they will use a head hunter.

I urge the Minister not to strengthen the Bill too much and to maintain the term "reliable information" although Senator Norris will say it might not be fair, that it is only a hunch or feeling that a particular person is not right for the job. However, there is less likelihood that the legislation will be avoided through recruitment in ways other than advertisement.

Mr. Neville

I support Senator Quinn. In recruiting employees one has to make judgments which can be open to scrutiny. One of the chief means used by employers in obtaining information about potential employees is through references. These are confidential and very valuable information is obtained through them, allowing the employer judge who is best for the job. If employers do not look at a broad range of eligible people due to fear of exposure, the result will be discrimination by the back door. It would create more discrimination than this Bill is seeking to do away with.

When a position is advertised there may be 50 applicants shortlisted to ten for interview and subsequently shortlisted to three. References are checked very carefully on the basis of performance with previous employers and not on criminology or any other issue. That is very reliable information because it is confidential. If it is to be exposed to scrutiny in the courts you enter a very difficult area where employers will restrict themselves from opening positions to everybody. Employers make a judgment — and it is only a judgment — about the most suitable applicant.

Mr. Norris

We are wandering into a very general area. This is a specific section which deals with a very particular area. We are not talking about putting up notices in shop windows, advertising or previous performance in a job.

Mr. Dardis

Or on the main gates of Trinity College.

Mr. Norris

We are talking about section 16, subsection (4) which says "Nothing in this Act shall be construed as requiring an employer to recruit, retain in employment or promote an individual". It speaks of recruitment, promotion, retaining in employment and requiring an employer to meet these requirements. An employer cannot promote, retain or employ somebody if he or she is aware, on the basis of reliable information, that there is a criminal conviction for sexual behaviour or reliable information that there is a propensity to engage in forms of unlawful sexual behaviour. That is the narrow area with which we are dealing. Everything I have heard about hunches, feelings and intuitions increases my concern. I do not think they are reliable. Decent legislation should contain a standard of proof and a requirement to support and justify this type of discrimination. This subsection provides a legitimate right to discriminate. That right has got to be legitimated. I strongly rebel against this issue of feelings, hunches, sensations and hot flushes. We should have a requirement for solid proof and not tittle tattle.

However, my amendment is not set in stone and I would accept some of the arguments; but I believe more than ever, having heard the other contributions, that the principle is correct. I just provided for "information from designated public bodies" but that can be broadened to include statutory and voluntary bodies which may be designated by the Minister. The ordinary individual is not inhibited from playing a part in that function for the following reason. If there is legitimate suspicion on the part of an individual, a neighbour or the parent of another child in a school, let that parent go to the appropriate voluntary body, let it act as the professional filter and let them then be the source of any complaint or inhibition on the employment of this person. That seems to me to be reasonable.

Why in this House should we wish to secure a position where, to adapt the words of Senator Dardis, any busybody can wreck the reputation or employment prospects of somebody on information which may or may not be reliable? Everything that has been said by those opposed to this amendment has indicated that it is a subjective judgment. He or she feels that this is reliable. That is not good enough as far as I am concerned.

Mr. Taylor

I thank Senators for their contributions on this group of amendments. It has been a very good debate.

Hunches, feelings and sensations are not provided for in the Bill. We are talking about a very different concept indeed. There is a world of difference between a hunch and reliable information.

Mr. Norris

Hunches and sensations seemed to crop up in many of the contributions——

Mrs. McGennis

They did not.

Mr. Taylor

——and I must assure Senator Norris that neither is it based on any subjective test. As I said, hearsay or loose comments from an individual are not reliable information. If somebody has a complaint, it will be determined at the end of the day on an objective rather than a subjective basis by the equality officer. That right and remedy is there.

Having said that, I will concede this much: this has been an extraordinarily difficulty section to encompass. Senators have had equal difficulty with it, as witnessed by the amendments tabled and the comments made. For examples, Senator Dardis's amendment referred to "information from a health board or a member of the Garda Síochána" and Senator Norris's amendment referred to information based on a criminal conviction or from a designated public body. Senator Dardis in his contribution introduced a new one, a public or voluntary organisation. Senator Norris went on to say that it could be a person. This highlights the undoubted difficulties.

Mr. Norris

Filtered through those bodies.

Mr. Taylor

We must remember — and this covers the point raised by Senator McGennis and that of Senator Quinn, in particular, which I understand fully and with which I agree — that this Bill is dealing with discrimination only on listed specified grounds. So far as the employment of a warehouseperson is concerned, one cannot discriminate against him or her on one of the discriminating grounds set out in section 6. One may not discriminate against him or her on the grounds of sexual orientation, marital status or disability.

If that is so, why does section 16(4) appear in the Bill? That is a fair question. It is there to cover the very special danger in Irish society of paedophilia and injury to children. We felt that in that sexual context we must make it absolutely clear that extraordinary caution is required here having regard to the way paedophiles operate. That is the reason it is spelled out in the Bill. It is likely it would be the position even if it was not there, but this is so important that we had to spell it out. The conclusion we came to was that reliable information — tested, if need be, in an appropriate case by an equality officer who will take all factors into account — is the only safe way that one could proceed on an issue like this. Section 16(4) is concerned primarily with the paedophilia situation. If we have strayed a little from what in any other context would be an objective desirable mean, it is done with the intention of covering the paedophilia situation, which virtually everybody in the House must surely agree requires extraordinary care.

I am sorry that Senator Norris was not here when I replied to his definitional point. As I explained, and I am sure he will read the Official Report in due course before Report Stage, there are technical difficulties why it would not be possible to accept his amendment in the context of section 6. It would remove the comparator possibility where sexual orientations is concerned and would present a practical difficulty. As section 16(4) makes clear, we are talking here about sexual activity which is unlawful. Sexual activity which is lawful is not within the ambit of the section and I hope that provides some reassurance to him.

Having said all of that and having regard to what all the Senators said on this group of amendments, I will keep all aspects of the matter under review for Report Stage.

Amendment, by leave, withdrawn.

Section 2 agreed to.

Sections 3 to 5, inclusive, agreed to.

SECTION 6.

An Leas-Chathaoirleach

Amendment No. 3 should read "line 26" not "line 24".

Amendment No. 3 not moved.

An Leas-Chathaoirleach

Amendment No. 4. Amendment No. 5 is related. Therefore, amendments Nos. 4 and 5 may be discussed together by agreement. Is that agreed? Agreed.

Mrs. McGennis

I move amendment No. 4:

In page 12, subsection (2), after line 38, to insert the following paragraph:

"(j) that one has a particular political opinion or belief and the other does not (‘the political opinion ground');".

The purpose of both these amendments is self-evident. There was a suspicion many years ago, which is not as prevalent now, that one could be guaranteed a job if one was a member of a particular political party. There was a suspicion even within the Houses of the Oireachtas that if one was of one hue, one could get one of the jobs in this House and if one was of another hue, other jobs were available. Given that the giving of such jobs is within the gift of the Civil Service Commission or the Local Appointments Commission, that is no longer the case; but there is still a perception — real or imagined — that there can be positive discrimination in favour of a member of a political party.

Mr. Neville

The general secretary of Fianna Fáil.

Mrs. McGennis

I must speak to him and find out what is his political persuasion.

Amendment No. 5 relates to members of trades union in the same way and I feel stronger about it. There have been instances where a major firm, which is in the news again, refused to allow the setting up of trades unions and if one was a card carrying member of a trades union one's chances of securing employment there were slim to non-existent. Whatever about amendment No. 4, which may be covered by changes which have occurred, particularly in relation to jobs in the public service, amendment No. 5 is worthy of some consideration and I am interested to hear the Minister's response.

Mr. Dardis

I support both amendments and my name is attached to each of them. I raised the issue of discrimination on the basis of political opinion on Second Stage and I suggested that the Unfair Dismissals Act, 1977, did not consider political opinion acceptable grounds for dismissing an employee. It would appear logical to include it in this legislation. One could envisage many groups being affected, for example, agnostic Unionists — which may be a contradiction in terms, although that might be unfair to agnostics. In a democracy it is important that political opinions flourish and are cherished. Thus it is important that it would be included with the other categories. A wide range of categories is outlined in the section and it would seem appropriate that political opinion would be included.

With regard to trade union membership, there is something curious about my suggesting to a Labour Party Minister——

Mr. O'Toole

Not with the concept of partnership the Senator's party is considering with the left wing elements of Fianna Fáil.

Mr. Dardis

I thank Senator O'Toole for that clarification.

Mr. Norris

His party's entire approach to the House is a paradox considering it does not believe in it.

Mr. Dardis

Senator Norris spoke about feelings and opinions. Now he going on in the same vein.

Mr. Norris

With scrupulous, relentless logic——

Mr. Dardis

What has logic got to do with it?

Mr. Norris

——about the paradoxical demagogues.

An Leas-Chathaoirleach

Senator Dardis on the amendment.

Mr. Dardis

I thank the Chair for his protection from Senator Norris.

Mrs. McGennis

Can anyone protect the Senator from Senator Norris?

Mr. Dardis

One would expect a Labour Party Minister to have included trade union membership in the section. These categories are sensible and if they are included in the unfair dismissals legislation it would be sensible to include them in this Bill.

Mr. Norris

I support these amendments — the holding of political beliefs or membership of a political party would seem to be legitimate categories to include. It would be wrong not to outlaw discrimination on the basis of such membership or belief. I also feel strongly about trade union membership. This is not just a theoretical point. I have received detailed correspondence from a man who was involved in a food processing company which was taken over by a large Irish firm. He was ruthlessly removed from his job on the basis of his membership of a trade union. He subsequently won a court case and was awarded about £20,000 in compensation. This case took place in the last 15 years.

There is a body of evidence which demonstrates conclusively that in certain circumstances employers are prepared to discriminate against potential employees on the basis of trade union membership. The practice should be outlawed. It is also important to include this provision because there is a move to attract multinational investment into Ireland and, frequently, such firms wish to discriminate on the basis of trade union membership. They want to have union free operations. However, they should not be allowed to discriminate on this basis.

Mr. O'Toole

I am delighted to hear the views of the Progressive Democrats and Fianna Fáil on this issue which I hope will transfer to recognition of trade unions in the workplace. This has been resisted in other places in many cases by representatives of those parties.

I agree fully with the points made by Senator McGennis and Senator Dardis. It was my understanding that these issues were covered in the Unfair Dismissals Act, 1977, and the Employment Equality Act, 1977. Will the Minister indicate if that is so? If not, it is a gap that needs to be filled.

This country has had a long and bitter experience of fighting for the right to organise and that right has been hard won. As Senator Norris said, there is not a month when we do not get correspondence from people in different employments suffering in this regard. I had meetings recently with the employees of a hotel close to Leinster House who were worried if they would be reemployed when the hotel reopened. They gave me the impression that they would not be reemployed. I am keeping a close eye on the matter and if it turns out to be the case I will raise it again. It would be unfair on the employers to name the hotel at this point. However, it would be very unfair on the employees if they were discriminated against in any way. There are many jobs in which employees have difficulty organising. The catering industry, which is growing rapidly, is a good case in point.

We need a reassurance from the Minister that the provisions exist already. If not, I support the amendments. Although I interrupted Senator Dardis, the points he and Senator McGennis made are valid. I was not aware that there may be a loophole in this area and I would welcome the Minister's view.

Mr. Quinn

My concern is for prospective employees. The more we do to strengthen this Bill, the more likely it is that avoidance will take place. Any employer could avoid the legislation by not advertising jobs. Discrimination on the grounds of political belief or trade union membership are indefensible. However, an employer could avoid the Bill's provisions by not advertising jobs because he could not then be sued. The ability of employers to avoid the provisions would mean that everything the Minister and Senators are trying to achieve would not be achieved.

I am aware of a man who was interviewed for a job and was asked if he would be willing to remove his beard. He did not get the job and claimed that he had been discriminated against. The equality officer dealing with the case discovered that the interviewer had not kept records of the interview questions and that the interviewer carried out the interview on his or her own. The legal advice to a prospective interviewer is to make sure all the formalities are observed. When interviewing a person one enters a legal minefield. In that case, the person claimed he had been discriminated against because the question whether he would remove his beard could not have been asked of a female.

Mr. Norris

I am not sure. In the case of a woman I would have thought it a reasonable request to make.

Mr. Quinn

Perhaps it could have been but the job was given to a man. The end result was that the prospective candidate was awarded £750. The person creating the employment could have had ten cases against him. If we add these two grounds the Bill will contain 11 grounds on which one cannot discriminate and within months of it being passed many unsuccessful job applicants will claim discrimination. On Second Stage the Minister said the onus of proof was on the applicant but in the case of the bearded person the onus of proof, in effect, was on the interviewer who claimed he had not discriminated against the person but still lost the case.

I have stressed this case because if a small employer considers taking on a person and seeks advice on dotting the "i"s, crossing the "t"s and negotiating the legal minefield, he will be told not to do the interview without preparing the questions in advance, recording every question and answer, and making sure the interview board has more than one person, with representatives of both genders, various religions and the travelling community. Every time we strengthen the Bill, such as by adding these two worthy amendments, we will ensure that fewer advertisements for jobs will appear. Employers will get in touch with acquaintances to appoint people and thereby not be sued.

I ask the Minister not to accept these amendments because, worthy as they are, they will widen the scope of the Bill and cause more court cases and claims. If they are accepted I will not be surprised if we have to amend the Bill again in a couple of years, if not sooner, because the system will not work. If he does not accept these amendments, the Bill should be able to sustain itself.

Mrs. McGennis

In case Senator Quinn's argument is repeated on all the amendments, will the Minister clarify the point? If Senator Quinn did not advertise a job but interviewed Senator Neville and myself for it and Senator Neville was successful, am I not still at liberty to take a case to the equality officer? All amendments can be opposed on the basis that employers will no longer advertise jobs but recruit by contacting people they know. Even following that approach——

Mr. Neville

The employer could contact one person only.

Mrs. McGennis

That is all right if he is looking for one specific person but he might have ten vacancies as packers in Superquinn and if he interviewed 11 people——

Mr. Neville

He could ask the first if she had sisters.

Mrs. McGennis

My point is that it is not the advertising of a post which determines whether someone can take a case. If an employer contacts two people who are known or recommended to him, the person who does not get the job is still at liberty to take a case under this legislation.

Mr. Taylor

To answer Senator McGennis, the Bill gives protection against discrimination on one of the specified grounds and whether that results from an advertisement or in any other way is neither here nor there. Once discrimination is established the person may maintain his or her claim to the equality officer. To answer Senator O'Toole, the 1974 and 1977 Acts provide protection on the grounds of gender and marital status only — they are confined in that respect. The Unfair Dismissals Act, 1977, already protects dismissal on grounds of trade union membership or political opinion.

A proposal to add new discriminatory grounds to the nine grounds already provided for in this Bill cannot but be attractive to any Minister for Equality and Law Reform. I am, therefore, sympathetic to the principle contained in amendments Nos. 4 and 5 tabled by Senator McGennis and Senator Dardis. The amendments identify political opinion and trade union membership for addition to the existing list of nine discriminatory grounds already provided for and prohibited in the Bill.

I have achieved progress on this difficult Bill because its scope, although quite broad, has yet remained focused. In giving effect to the commitment to enact legislation which would outlaw discrimination on nine diverse grounds, I have consulted widely, considered the particularities of each specific ground and legislated differently in respect of each while, at the same time, securing progress towards a single, general, coherent anti-discrimination Bill.

The new grounds proposed by Senator McGennis and Senator Dardis merit similar research and consultation but major issues would fall to be resolved before they could be dealt with in legislation and I would be extremely concerned at any delay which such preparatory work would involve for this Bill. Decisions would fall to be taken on a range of complex issues, such as the limits on political activity in some branches of the public service, the Defence Forces and the Garda; the extent and nature of exclusions to cater for existing practices which often operate on a party political basis; and questions relating to trade union membership and freedom of association.

In bringing forward this legislation, the Government has covered a broad spectrum and is providing anti-discrimination protection to a wide range of groups who had no protection since the foundation of this State. I do not claim the list is exhaustive but we are already making great strides by providing protection for these nine distinct categories, most of which have not had protection until now. Other grounds can be considered on another occasion. I recognise the importance of the issues raised by Senators and believe it is important that the question of extending the scope of the legislation beyond the nine grounds covered in the Bill, including the two grounds sought, should be examined in the short term. My Department will review the legislation for this purpose and publish a discussion document within the next two years. The report of the Department's work, due for publication in the near future, will contain a commitment to this objective. In these circumstances I earnestly request the Senators to put aside these proposed amendments for the moment.

Acting Chairman (Mr. Finneran)

Is the amendment being pressed?

Mrs. McGennis

I am inclined to press it. I accept what the Minister says but, since he accepts the reasoning and, given his track record, I feel the amendments must be good and should be pressed. I would be prepared to hold off on amendment No. 4 because of the problems relating to political affiliation, definitions, etc. We have legislation to provide that dismissals based on trade union membership are unfair, therefore there must be definitions to cover amendment No. 5. It is fine to bring a case claiming one was sacked on trade union grounds, but the most pressing issue is where a person without a job can never get employment on that basis. We already have legislation covering dismissal from employment on the basis of trade union membership.

The Minister explained why aspects of amendment No. 4 are problematic, but he should accept amendment No. 5 unless there are major problems because it is fundamental to what he is trying to achieve. Perhaps it could be reconsidered on Report Stage. It is an important issue, especially with regard to the number of multinational companies investing in Ireland who do not appear to be predisposed to employing trade union members.

Mr. Dardis

The Minister's reply is weaker than his earlier ones. While it could be argued that all nine categories should be deleted, if they are to be included so should the tenth and eleventh, covering respectively those holding political viewpoints and those belonging to trade unions. It does not make sense otherwise, especially as it is incorporated in other legislation.

The Minister's proposal amounts to a deferral perhaps on the basis that it will be forgotten. However, it is better to address these aspects as we deal with the legislation in detail. If it is considered that their inclusion will improve it, then we should proceed on that basis.

Mr. Norris

Senator McGennis is right to press the question of trade union involvement. It is absurd to forbid dismissal from employment on the grounds of trade union membership while not being prepared to forbid refusal to hire on the same grounds. I have produced evidence of dismissal in the case of somebody who had recourse to the courts on foot of the relevant legislation and won compensation. The practice of antagonism by certain employers towards the trade union movement is therefore on record. A timescale of two years to further consider this aspect is too lengthy. The Minister should be able to encompass difficulties before Report Stage. I hope he will do so.

Senator Quinn is a large and good employer and runs a tight ship. However, he spoke from the point of view of a small employer, which is not where the problem lies; it is far more likely to be among larger employers. For example, McDonald's Restaurants of Ireland Limited has a nasty history in many respects, including the refusal to employ trade union labour. I recall participating in a picket against the company in the 1970s. These big enterprises should not be allowed to bully their way onto the Irish market and discriminate against trade union membership.

Many such companies, especially American, will wish to come into this country and discriminate against people in employment. They make no secret of their dislike of trade unions. I am, therefore, surprised that the argument has not been made that trade union membership may frighten away some big American corporations; perhaps it is being made under the surface. However, they should not be allowed discriminate in their hiring policies. While deferring to Senator Quinn's greater experience in the world of business, I suspect it is the bigger companies that would be the most discriminatory in this area.

Mr. O'Toole

I asked the Minister whether this aspect was covered in earlier legislation and I thank him for his comprehensive reply. I accept there are difficulties regarding the question of political beliefs, especially in connection with those working in the Civil Service and various parts of the public sector; for example, the question of constitutionality and the Ministers and Secretaries Act arises.

If a person was to be denied access to employment on the basis of his or her membership of a trade union, I, as a trade union general secretary, would be prepared to take any steps necessary to defend that person on the basis that it would be wrong and unjust. It would be against the views of the public on the right to associate, the right to organise, etc. Despite the progress made by the social partners over the past ten to 12 years, we have failed to adequately address the issue of trade union recognition. Failure to deal with it satisfactorily is a flaw in Partnership 2000.

The Minister's party supports the issue of trade union recognition. Amendment No. 5 is a small step in that direction. Many would feel protected by it. While Senator McGennis agrees with his point on the difficulties of political belief, which infringes on many areas, she is right to call on him to look at this amendment before Report Stage; otherwise those of us who feel strongly on the issue may have to push matters further. It is of fundamental importance.

The Minister must share my view on this matter; I know he does not disagree in principle. The amendment is drafted in the style of the subsequent parts of the Bill and therefore allows him to include it. Any reworking on it can be undertaken between now and Report Stage. In the meantime he should indicate his support for it.

Ms O'Sullivan

The original intention of the Bill was to deal with specific sectors of the population who did not have any protection, which is why this listing was chosen. However, the question of trade union membership should be looked at before Report Stage. A person should not be discriminated against in terms of consideration for employment on the basis of such membership. I do not know if there is a reason it should be included in different legislation. I would welcome if the Minister would look at it before Report Stage.

Mr. Taylor

Senator O'Toole is quite right — I am, as I indicated in my initial reply, broadly in support of the concept of what is spoken about here. I gave in that reply my explanation of the genesis of the Bill and the wide range of grounds which it already covers. One could add additional grounds almost ad infinitum if one had time to carry out the necessary research and consultation.

Senator McGennis asked if there was any basic reason for not accepting amendment No. 5 now. If amendment No. 5 were adopted now it would prohibit all difference of treatment on grounds of trade union membership with no exceptions. If this ground were to be included, we would have to devise some exceptions. For example, amendment No. 5 with no exceptions could upset existing arrangements on staff associations in the Garda and Army. It could also prevent trade unions from giving preference in posts to their own members. It would, in other words, make a number of acceptable practices illegal overnight. However, as I said, I am sympathetic to its basic thrust and I will undertake a specific review of both these grounds for Report Stage.

Mrs. McGennis

I welcome the fact that the Minister will specifically return on Report Stage to both grounds. He said earlier he hoped to have these areas examined within a period of two years. He is a particularly enlightened Minister who has pioneered extremely progressive legislation. However, by his own admission, he is about to leave us. If it is possible I would like to see this copperfastened during his term as Minister for Equality and Law Reform.

Mr. Neville

The Senator's party could not find as good a replacement but there will be good replacements within the Rainbow Coalition.

Mr. Taylor

I want to make it very clear that I am not giving any commitment that I will bring forward such an amendment on Report Stage. A large number of aspects will have to be examined and I cannot say whether it will be possible to do that within the time frame. Wide ranging consultations will have to be held with the social partners. I have given examples of a number of exceptions that will have to be examined and considered, and there could be others.

It has been a major effort to bring forward this legislation which covers nine grounds of discrimination. There is a limit to what can be encompassed in a particular time frame in one piece of legislation. If I say so myself, we have covered an extraordinarily broad spectrum of rights creations in this Bill.

I know it is the function of Deputies and Senators, particularly Opposition ones, to push out the boat as far as possible. I have done that myself and they are quite right to do so because it is their role. At the same time, we must operate as politicians within the limits of what is possible at any particular time. However, as I said, I will examine it within those parameters before Report Stage, without giving any specific commitment on the issue which I cannot do at this point.

Acting Chairman

I wish to acknowledge the presence in the Distinguished Visitors' Gallery of former US Senator William Bolger, who is a former Governor of the State of Massachusetts. He is very welcome to our shores.

Mrs. McGennis

Given the time constraints, I seek to have amendment No. 5 taken on board as a priority. If amendment No. 4 has to be deferred, I can live with that.

Mr. Dardis

I am casting my mind back to when former Senators Costello and Upton occupied these benches. If a Minister had given those reasons when they were in Opposition they would have gone berserk.

Mrs. McGennis

Would they have become emotional?

Mr. Dardis

They might even have got tired and emotional.

Mr. Taylor

Do they have a propensity to do that?

Mr. Dardis

On hearsay, yes. There is a model for this in the Unfair Dismissals Act which should make it easy to insert it into this legislation. All the Minister has to do is look at that model.

Mr. Taylor

The Unfair Dismissals Act is limited to dismissals; this is a much more broad ranging Bill. However, I am delighted to see the PD conversion to trade union interests. It is quite refreshing. I have never heard it before.

Mr. Dardis

The curious thing is that we are now trying to convert the Minister.

Mr. Taylor

There is no need to convert me, I have been around for a long time.

Mr. Dardis

I have personal reasons for knowing the practical implications of this in terms of political views. When I was appointed to the House I had reason to consult the unfair dismissals legislation because it was thought there was a conflict of interest between my membership of this House and my employment.

I am prepared to accept that the Minister will return to this on Report Stage but he can be assured that the amendment will also be tabled at that Stage and, if necessary, we will divide on the matter. I am prepared to take on board the arguments he has made in respect of the Defence Forces and so on; I am prepared to concede those implications but they need to be teased out and we need to know what they are for Report Stage. At least the Minister did not resort to the last refuge usually used by those sitting in that chair — the Attorney General. I get very worried when I hear Ministers resorting to that refuge.

Mr. Taylor

I am keeping that in reserve.

Mrs. McGennis

I thought ISME might be the last refuge.

Amendment, by leave, withdrawn.

Amendment No. 5 not moved.

Mr. O'Toole

I move amendment No. 6:

In page 13, subsection (3)(a), line 2, to delete "65" and substitute "70".

I am moving this amendment on behalf of Senator Lee. This is a very simple amendment which relates to the fact that people can do different jobs at different ages. As early retirement becomes a feature, the question of compulsory retirement should also be reviewed. We have always tried in any discussions on this matter in the House to find a balance between pushing people out of their jobs and giving them the option to leave. This amendment proposes to increase the maximum age limit from 65 to 70 years. Perhaps there are reasons for this limit to which we have not given consideration.

Mr. Taylor

I am glad Senator Lee has focused attention on this issue by tabling this amendment. The demographics of Europe, including Ireland, point to an aging society where, while life expectancy continues to grow, the rate of natural growth in the population is on a downward trend. This phenomenon is in marked contrast to the very high rates of natural increase in population which were a feature of Irish society prior to the 1980s.

The existence of a large youth cohort in the population creates a major challenge for society to provide labour market opportunities on an increasing scale. Where, as has been the case in Ireland, there is already a high level of unemployment, the pressure to find employment opportunities is even more acute. In this context, some turnover on the labour market has been facilitated by the operation of a generally accepted retirement norm which operates an upper age limit of 65 years. This is reinforced by a sophisticated and expensive national pensions system which is often supplemented by private means, frequently sponsored by employer contributions.

I do not consider the time is right to begin to unravel this regime. That is not to say that persons over 65 years of age should not be considered for employment. There are already persons over that age actively engaged in employment and this legislation will not change their right to be employed. However, the question of introducing protection against treating persons over 65 years of age differently on the labour market would interfere with currently accepted labour market practices which facilitate a minimum level of employment turnover including the creation of employment opportunities for unemployed persons and the growing number of young people entering the labour market. In the circumstances, I appeal to the Senator not to press the amendment.

Mr. O'Toole

Discussions on employment have regularly focused on creating employment opportunities for unemployed or younger people. I reject the idea that retirement is important in order to create employment opportunities for other people. The idea of pushing a person out of work or refusing people access to work in order to create employment for a person who happens to be unemployed or younger is not fair. I do not accept that is a good idea.

European demographic trends are a fundamental issue and are being discussed in great detail in at least four countries, namely, Ireland, Italy, Germany and the UK. The prospect of the liability for the State in terms of pension requirements is huge. Italy's liability is almost 90 per cent of total pension costs. In the UK it is being used as one of the arguments against entering European Monetary Union. The reason I raise those issues is that pension liabilities only come into effect when people are out of the workforce because of retirement or resignation. It should be an attraction to member state Governments to keep people in employment in order to defer pension liability and, in crude terms, by relating it to life expectancy figures. Life expectancy figures have increased significantly and there is an overall saving for the State in pension liability. Every European country faces this problem. However, I accept it is less of a problem for Ireland. Germany wonders how it will pay for its aging population. At least in Ireland the population profile is softening in the right direction. This is an issue on which I might find agreement with the Department of Finance. I do not intend pressing the amendment to a vote but it should be carefully considered before Report Stage.

Dr. Henry

I support Senator O'Toole. I discovered to my amazement that in Italy the situation regarding pensions is extremely serious. Footballers and cyclists who used to receive pensions at 45 have been told they will have to wait until they are 60. It is particularly difficult for people in those occupations to find a place on a good team after the age of 30. It is a situation we may have to look at in the future.

Amendment, by leave, withdrawn.

Section 6 agreed to.

SECTION 7.

Acting Chairman

Amendment No. 9 is related to amendment No. 7 and they may be taken together by agreement.

Ms Honan

I move amendment No. 7:

In page 13, subsection (1), lines 10 to 22, to delete paragraphs (a), (b) and (c) and insert the following paragraphs:

"(a) both perform or, if both were employed would perform, the same work under the same or similar conditions or each is, or if both were employed would be, interchangeable with the other in relation to the work; or

(b) the work performed by one is, or if both were employed would be, of a similar nature to that which is, or would be, performed by the other and any differences between the work which is, or would be performed, or the conditions under which it is, or would be performed, by each either are, or would be, of small importance in relation to the work as a whole or occur, or would occur, with such irregularity as not to be significant to the work as a whole; or

(c) the work which is performed by one is equal in value to the work which is or would be performed by the other, having regard to such matters as skill, physical or mental requirements, responsibility and working conditions.".

The Bill does not make provision allowing comparison for equal pay with a hypothetical male. It is an issue that the National Women's Council of Ireland raised. Many arguments have been put forward that if equal pay legislation is to succeed and have real effect where there is a high propensity to use women as cheap labour, it must provide a mechanism for ensuring all women are able to secure what would be the going rate for the job. Community law does not require comparisons with a hypothetical male and the European Court of Justice has ruled out any comparisons which are not made on work performed by employees of a different sex in the same employment. This Bill will not extend equality legislation beyond our obligations under Community law. There are huge implications for women in industries and businesses which employ all female staff. This amendment is required to prevent the employment of women in lower paid jobs or where some become trapped.

Mrs. McGennis

This was discussed in the Dáil in great detail and the Minister said he was sympathetic to the objective of the amendments. However, he had difficulty producing a formula of words or the formula proposed to him was unsuitable. I propose that within 12 months of the enactment of this Bill the Minister should introduce regulations setting out procedures for the use of a notional comparator. The Minister stated he wanted to achieve that objective. Women in low paid employment simply cannot get out of the poverty trap. For example, the bulk of workers employed in contract cleaning are women but there is no other job to compare it with. With the expertise at the Department's disposal, the Minister should introduce a procedure by which the notional comparator can be used to address this poverty trap for women. Rather than force a set of words which may not achieve the objective, I propose the Minister should address this serious matter within 12 months.

Mr. Taylor

Under these amendments, Senator Dardis and Senator McGennis seek to introduce the concept of a hypothetical or notional comparator to the Bill; so would I. However, as everyone is aware through press coverage and otherwise I gave active consideration to this matter when the Bill was being drafted. I wanted to develop a workable model for a hypothetical comparator because I believe means must be found to gradually dismantle the vertical and horizontal segregation of the labour market. I looked for a model elsewhere and found that the only one available was in the Netherlands which has been abandoned.

The Second Commission on the Status of Women did not propose a hypothetical comparator. The issues I set out to address when I considered the hypothetical comparator option are complex and are ingrained in the structure of the labour market. I examined this issue in considerable detail and I consulted widely with the public service, IBEC and ICTU on how it might apply. Unfortunately it did not prove possible to develop a viable model for a hypothetical comparator that would achieve the results intended.

I was interested in Senator McGennis' proposal involving the use of regulation to bring in the concept of a notional comparator. It is not one which could be accommodated by means of regulation. It does, however, point to other possible options to address equal pay, in particular, the recent EU code of practice on equal pay which the Employment Equality Agency is already examining. I would give consideration to the possibility of developing a suitable national code of practice of this nature which could be approved under this Bill. As an approved code, it would be admissible in evidence in equal pay cases taken under the Bill.

This is a matter which could be discussed with the new authority when it is in place. There are, of course, other options might also be considered. The new powers of the authority to carry out equality reviews and action plans may provide some potentiality also and helpful insights into practices with regard to pay differentials between men and women in some circumstances. I regret I am unable to accept the amendments.

Ms Honan

The Minister said he wanted to include the intention of the amendments in the Bill but, unfortunately, he was unable to devise a model. He mentioned the adoption of a code of practice. Some firms and industries have codes of practice which operate in the workplace. However, unless legislation obliges companies to operate specific codes of practice, it is difficult to ensure that will happen. The Minister mentioned the operation of a code of practice which would be approved under the Bill and that the new authority might be able to enforce it.

Can he do anything to ensure a code of practice or a notional comparator could exist in the future? It is a difficult area but if the problem of women receiving lower pay than men for the same work, without a male comparator, is not dealt with now, I do not know when it will be addressed. This issue should be addressed — or at least there should be some prospect of it being addressed — by the Bill.

Mrs. McGennis

If it was easy, we would all be doing it and I knew the objective of the amendment would be difficult to achieve. Female Members of both Houses have spoken ad nauseam about the need to address certain matters. I do not intend to delay the legislation to try to achieve the objective of the amendment but can the Minister instruct a body to come up with a formula to meet it? I do not intend to be obstructive but we should try to do something about releasing women from the low pay trap, which is the desire of all politicians. I do not want to force a formula on the Minister; perhaps the Department could devise one. Can the Minister ask a group or organisation to consider this matter and report to the Department within a specific time? He understands the intention of the amendment and perhaps he could give me some hope that something could be done.

Mr. Taylor

It will not be possible to do anything in terms of devising a system for a notional or hypothetical comparator. According to my research, that does not exist anywhere. We tried it and it was extremely difficult. The only place it was ever introduced was the Netherlands but it did not last. It was only in operation for approximately six months before it was dropped.

I indicated that the Employment Equality Agency is examining the EU code of practice on equal pay and I will consider providing a suitable national code of practice of a similar nature. Under the terms of the Bill, that can be given special status in equal pay cases. This is the road to travel for the moment on this issue. I signalled that positive intention earlier and I hope it will be considered reasonably satisfactory.

Amendment, by leave, withdrawn.

Mrs. McGennis

I move amendment No. 8:

In page 13, subsection (2), line 28, after "work" to insert "provided such agency worker is not so employed for a period of longer than 2 months."

The section states that if somebody from an agency is employed in a firm and he or she is doing the same work as an employee there, the agency worker does not need to be paid the same rate for the job as somebody who is in permanent employment. I understand the reasons for that but a specific period of time should be inserted in the Bill because this provision could be open to abuse.

If positions with a going rate is £200 a week become vacant and a firm can avail of cheaper labour from an employment agency at £130 a week, the practice of employing agency workers could easily replace direct employment. I accept there is often a need to employ agency workers and I am not attempting to rule that out. However, there is a need for a safeguard to ensure agency workers do not replace permanent staff in a firm. For example, two people sitting side by side making parachutes could be paid totally different rates for the job. They could both make 100 parachutes a week but one would receive £200 a week because they are employed by the firm and the other would receive £95 a week because they are employed by an employment agency. It is acceptable in the short term but as the Bill seeks to protect employees — perhaps more than Senator Quinn might wish because it is not the Bill's intention to protect employers — it is necessary to strengthen that aspect. It is a loophole but I am willing to listen to the Minister if I am incorrect.

Mr. Taylor

The amendment seeks to make agency workers who are employed for a period longer than two months comparable with non-agency workers. When the Bill was being drafted I was conscious of the need not to overlook the position of agency workers. However, I did not wish to interfere with the agency worker labour market to the extent that I made it more difficult to pursue employment opportunities in that sector. I also wanted a degree of legal clarity as to how the agency worker would be treated. By providing for equal treatment between agency workers, I achieved that clarity and there have been no serious criticisms of that approach in the extensive consultations and submissions on the Bill to date. However, that does not mean the Senator's proposal is without merit. In an ideal world, it is probable that I would sympathise with her.

However, the complexity of the labour market and the value of flexible work arrangements persuade me that agency and non-agency workers should and must be distinguished under the Bill. There is potential for considerable problems if a timescale, such as two months, was introduced. Agencies might seek to rotate their workers before the two months expired and other agency workers might seek to compare themselves with the agency worker who served for more than two months in an employment. In the circumstances, employment equality for agency workers would be best served by retaining the approach adopted in the Bill, which leaves a comparable position for agency worker with agency worker and non-agency worker with non-agency worker.

Mrs. McGennis

I understand the Minister's point that one agency worker should be paid the same as another. Can the Minister advise me how I should approach what I am trying to achieve? An employer could skirt the requirements of the legislation by not directly employing people. Presumably existing workers earning £200 a week cannot be dismissed but there should be a prohibition on employers using agency workers ad infinitum when vacancies arise who would be doing the same work as the remaining permanent employees but earning a different rate. It is comparable to the position of yellow pack workers which created trouble in its time.

Mr. Taylor

My information is that the Senator is working on a mistaken impression of how the system works. I understand that usually agency workers receive higher remuneration. An employer who sought to take that road would face increased costs from employing agency workers.

Mrs. McGennis

Are agency workers paid more?

Mr. Taylor

That is my information.

Dr. Henry

I am sure the Minister has better information than I but the rate of pay is probably higher for an agency worker.

Mr. Taylor

Exactly.

Dr. Henry

However, a deduction is made by the agency before the worker receives his or her pay. In general, agency workers receive considerably less pay than full-time staff despite the fact that they may be doing the same work. I do not know what can be done about this and I take the Minister's point about introducing a time limit. I was shocked to discover that firms refuse to be corralled by ensuring that temporary or agency workers are released from employment for a certain period within the time limits set down in legislation. Much as Senator McGennis might desire it, I do not believe a time limit of two months would provide protection because people might be employed for seven weeks before being released. I accept the Minister's point but, in general, agency workers are paid less because the agencies deduct a specific amount of their salaries.

Mr. Taylor

They may receive less by reason of commissions but their contractual situation is quite different.

Mrs. McGennis

Senator Henry is correct. In my experience, agency workers are paid less because the agencies themselves receive a commission. Is the Minister stating that if I were to employ a person and pay them £200 per week I would be obliged to pay £210 per week to an agency to provide an employee? I find that difficult to believe.

Mr. Taylor

Based on recollection, when I employed an agency worker the differential was considerably more but I cannot state the net amount received.

Mrs. McGennis

That would certainly be a disincentive to those using the kind of practices to which I referred. I hope the Minister proves to be correct.

Amendment, by leave, withdrawn.

Amendment No. 9 not moved.

Section 7 agreed to.

SECTION 8.

Mrs. McGennis

I move amendment No. 10:

In page 14, subsection 6 (a), lines 41 and 42, to delete "(other than remuneration and pension rights)"

I fail to understand how an employer can be deemed not to have discriminated against someone if they do not receive the same pay as their fellows. For example, if I read the section correctly, conditions of employment do not include remuneration, pension rights, etc. This seems inconsistent with the legislation because if such provisions are not included the section is totally discriminatory.

Mr. Taylor

Equal pay is provided for separately under sections 19, 20 and 29.

Amendment, by leave, withdrawn.

Section 8 agreed to.

Sections 9 to 15, inclusive, agreed to.

SECTION 16.

Amendments Nos. 11 to 14, inclusive, not moved.

Section 16 agreed to.

Section 17 agreed to.

SECTION 18.

Mrs. McGennis

I move amendment No. 15:

In page 21, subsection (1), lines 5 and 6, to delete "so that, where 'A' is a woman, 'B' is a man and vice versa.”.

Is there a third sex of which I am not aware? For example, section 18(1) states "For the purposes of this Part "A" and "B" represent two persons of opposite sex so that, where "A" is a woman, "B" is a man, and vice versa.” Is there any need for this provision?

Mr. Taylor

I received advice from the parliamentary draftsman about this amendment and he indicated that he inserted the text proposed for deletion by the amendment to concrete the example of the concept already provided in the subsection. The draftsman is of the view that the subsection, without this text, is the poorer and more obscure. It makes no change of substance to the Bill and I ask the Senator to take on board the views of the draftsman and consider whether it would be possible for her to withdraw the amendment.

Ms O'Sullivan

Is the parliamentary draftsman male?

Mr. Taylor

Yes.

Mrs. McGennis

Is he one of the third sex to which I referred?

Amendment, by leave, withdrawn.

Section 18 agreed to.

Section 19 to 22, inclusive, agreed to.

SECTION 23.

Acting Chairman

Amendments Nos. 16 to 26, inclusive, and Nos. 32 and 33 may be discussed together by agreement. Is that agreed? Agreed.

Mrs. McGennis

I move amendment No. 16:

In page 24, lines 8 to 19, to delete subsection (2) and substitute the following:

"(2) For the purposes of this Act, each of the following acts constitutes sexual harassment of A by B—

(a) any act of physical intimacy by B towards A, which A could reasonably consider to be sexually offensive, humiliating or intimidating;

(b) any express request by B for sexual favours from A; and

(c) any other act or conduct of B (including, without prejudice to the generality, spoken words, gestures or the production, display or circulation of written words, pictures or other material) which A could reasonably consider to be sexually offensive, humiliating or intimidating.".

A person may perpetrate an act which someone else believes to be unacceptable but the perpetrator may feel their behaviour to be entirely reasonable. However, the individual on the receiving end would not consider it reasonable. The wording proposed in the amendment was suggested to the Minister by the Employment Equality Agency. With its record, I would be surprised if the Minister did not find that agency's wording acceptable.

My primary concern involves the introduction of the reasonable person test to define whether unlawful sexual harassment has occurred. The Employment Equality Agency made the case that in other areas of law such a test would prove uncontroversial because the experience at issue is gender neutral. However, the experience of sexual harassment is not gender neutral and it is generally accepted that men and women have different attitudes to this issue and what constitutes sexual harassment. Therefore, it is important that women's perceptions of what constitutes sexual harassment is fully acknowledged by the law in this area. For that reason, I propose that the wording be changed to reflect this.

Dr. Henry

Everyone welcomes this important section of the Bill. When one considers cases which came before the Labour Court in recent years, one realises that people were obliged to endure an enormous amount of victimisation. My concern about applying reasonable person test — I believe this refers to an individual on top of the Clapham omnibus — is that 50 per cent of these people will be men who have a different attitude to sexual explicitness in the workplace.

I was alarmed to discover that some women prefer to address this issue by means other than litigation, which is the best form of redress for women who have experienced sexual harassment in the workplace. A well known journalist, for example, whom I would not describe as an unreasonable woman said it was better if labels, such as bounder or cad, were given to people or if there was a stigma attached to the office rather than resorting to litigation. That is a facile way of looking at what can be a serious form of distress for women who are often not in as powerful a position as men in the workplace.

Recently I attended a conference in Dublin Castle on sexual harassment. It was stated that women managers rarely suffer from sexual harassment but that women in less advantageous positions in the workforce do. It was also said that malicious claims are unusual and that people do not generally bring cases for large monetary gain; they just want the behaviour to stop so that they can continue with their job. Fortunately, in the majority of cases when it is pointed out to the offending person that they are causing great distress to the other person in the workplace, they realise their behaviour must be altered. It is also important to recognise the sensitivities of the person involved.

As Senator McGennis said, the Equality Employment Agency has sought to make such a change. The trade unions also believe a change in this direction would be useful. No one is saying that most men in the workplace try to make women's lives a misery. Practices in firms must be seen to be of a certain standard and it must be clear that only certain types of behaviour will be tolerated. It is important to take the views of the person involved into account.

Cases before the Labour Court have shown how explicitly offensive behaviour has been in the workplace. However, most cases are resolved in the workplace. I ask the Minister to take this into consideration because resolving this issue outside the workplace means that a broad definition is given to a "reasonable person". Malicious cases are rarely taken against a person. People just want the offending behaviour to stop and to be given an apology. I ask the Minister to accept these amendments.

Mr. Dardis

It is important for a man to say similar things to those said by the female Members of the House. I endorse what Senator Henry and Senator McGennis said and I emphasise the point about the Employment Equality Agency. I commend amendment No. 25.

Section 23 places the onus on the person who is responsible for sexual harassment rather than on the person who is subjected to the harassment to defend themselves. I have seen people subjected to sexual harassment in the workplace. However, those who were responsible did not think they were doing anything wrong. It is worrying that these people think this is fair game. Something must be done to address this and to ensure that people who receive unwanted attention have some means of recourse. I have seen cases where the harassment was regular and sustained and where the person responsible did not think there was anything improper about it, although it was obvious the recipient of the harassment was upset.

Mr. Norris

I have difficulties with subsection (b) of amendment No. 16 which makes "any express request by B for sexual favours from A" an offence of sexual harassment. I do not agree with this because it would be peculiar if any request for sexual favours became sexual harassment under any circumstances. How do people get together if they do not indicate their feelings towards one another? Are we to live in what James Joyce inaccurately described as our "renunciatory and frog-like sterility", although he obviously did not know much about the sex life of frogs about which I learned to my horror from a recent television programme.

Mr. Dardis

That spawns a whole new argument.

Mrs. McGennis

After work, not during it.

Mr. Norris

It seems that people are legitimately entitled to investigate the possibility of a sexual connection with a colleague if they so desire.

Mr. Taylor

That is where the phrase "reasonable person" comes in.

Mr. Norris

There is no qualification for "reasonable person" in subsection (b) which states: "any express request by B for sexual favours from A". Perhaps I am misreading it because I was at a meeting of the Joint Committee on Foreign Affairs.

Mr. Taylor

The Senator is looking at the amendment. He should look at section 23.

Mr. Norris

Perhaps the Minister could tell me if the amendment does not make "any express request by B for sexual favours from A".

Mrs. McGennis

It is the same.

Mr. Dardis

Perhaps the Senator should go back to the meeting of the Joint Committee on Foreign Affairs.

Mr. Norris

Perhaps I should.

The point I wanted to make about sexual harassment is illustrated in a case in the United States involving President Clinton. The woman journalist commenting on President Clinton's difficulties made what I thought was a reasonable point that in the case currently thundering its way through court, President Clinton may have behaved with a lack of decorum but his behaviour could scarcely be construed as harassment. However unseemly his behaviour, which I will not describe on the record but with which most Members are familiar——

Mr. O'Toole

Alleged behaviour.

Mr. Norris

——when the young woman declined, he immediately desisted from his attentions and accepted that she did not want to get involved. That does not seem to constitute sexual harassment. This woman journalist made the point that in any reasonably balanced society, it should be possible to make what she described as an investigative first strike.

Mrs. McGennis

He lacked subtlety.

Mr. Norris

Once that position has been established, any further attempt to press a sexual request would appear to be sexual harassment.

Other amendments with which I am involved are intended to ensure that the test for sexual harassment is objective and does not rely on the subjective view of the alleged victim, but it introduces the idea of a reasonable member of the aggrieved person's sex. That would leave room for objectivity.

Mr. O'Toole

There are four options being proposed. We are talking about harassment in the workplace. It is agreed that this goes on and that it is demeaning and unacceptable and we should have legislation to deal with it, but the question is how do we implement this legislation?

We need to focus on the options before us rather than on the general issues of sexual harassment. The Bill uses the phrase "a reasonable person". If A claims that they were harassed by B the proof is whether "a reasonable person" would agree that A was harassed.

This wording is unacceptable to many people and the Minister has heard a number of the objections to it. These are based on attempts to prove what this mythical "reasonable person" would agree with. Senator Norris' amendment speaks of "a reasonable person" of the same sex as A. That is a fair way of proceeding if we could be sure of what constituted "a reasonable person". This approach is fraught with difficulty.

Senators Henry and McGennis have tried to deal with this by removing the phrase "a reasonable person". Their suggestion is that if A alleges that she was harassed by B the test should be that A could reasonably feel that she was harassed. This approach is also unfair because it relies on the perspective of the person making the allegation. That would not stand up to fair play and equity. The tenets of natural justice would not support it and I have difficulty with it. However, I agree with the arguments made by the Senators and the reasons for their oppositions to the phrase "a reasonable person".

I have attempted to find a middle line between these three. My amendment states that "it would be reasonable having regard to all the circumstances". We do not have to look for the reasonable person or the reasonable person of the same sex. Neither do we have to obtain the view of someone trying to assess the situation from the point of the view of the person alleging the harassment.

The wording in my amendment includes the view of the person alleging harassment, someone of a similar sex and of "a reasonable person". The question is whether this is reasonable having regard to all the circumstances including those raised by my colleagues. My amendment offers an objective test which fits the rest of the Bill. We are all making the same points. I am simply tuning it more tightly to the principles of natural justice, objectivity and fair play to an individual who feels they are being harassed.

Dr. Henry

I forgot to deal with amendment No. 21 which proposed the deletion of the word "express". I could not understand why this word was used in the Bill. Whatever about Senator Norris's problems with President Clinton's life and the sex life of frogs, which I am glad to say I found out about when I was seven——

Mr. Dardis

Senator Norris had a very sheltered upbringing.

Dr. Henry

This reminds me of the saying "if the lady says maybe she means no. If she says no she means yes and if she says yes she is not a lady". I wondered what the "express" request had to be. Senator Norris should not worry about being able to make pre-emptive strikes. They are possible because she will say maybe or something like that. However, why the "express" request? How explicit does a request have to be? Would "tonight's the night Josephine" be acceptable. What will be considered offensive?

Mr. Dardis

Your place or mine.

Mr. O'Toole

Someone is going to suggest that we teach seduction processes and techniques in primary schools.

Mr. Norris

I agree that the use of the word "express" is a problem but for a different reason. Implicit requests can sometimes be more sinister. The use of the word "favour" is also curious. This is an antique word. I am not sure if it is intended to imply that this section——

Mr. Taylor

The Senator ought to be careful; he is coming close to age discrimination.

Mr. Norris

I am nearly 53 and almost qualify for free travel. Is the use of the word "favour" intended to imply that there will be some quid pro quo? That is where the danger lies. Telling someone that one fancies them is human. Let us not be too po-faced about this. I would not object to an express request for sexual favours. I have not had one for a number of years. It might cheer up my life and I would not regard it as sexual harassment. However, the danger is when the relationship is between a senior and junior employee or an employer and client.

Mr. Taylor

That is the point.

Mr. Norris

The important point is whether there is an implicit suggestion that if one does no comply with a request, express or implied, one's career prospects will be damaged. In the Hollywood movies of the 1930s the boss was always falling in love with the secretary. Are we going to say that this is sexual harassment?

Mrs. McGennis

Love is never harassment.

Mr. Norris

"Unwelcome" would be much better than "express". The Minister might consider that word, as otherwise the attention would be welcome and logic suggests that if the attention were welcome there would be no complaint.

Mrs. McGennis

Amendment No. 26 strengthens my point. I mentioned a code of practice in the workplace and that might clarify what we are trying to achieve.

We had difficulty finding a notional comparator in relation to a previous amendment I put down. We now have difficulty finding a "reasonable person". My amendment does not say "which A considers to be sexually offensive"; it says "...which A could reasonably consider to be sexually offensive...". It is not that A has carte blanche to say something is unacceptable and is therefore sexual harassment.

A third party mediator, Labour Court official or equality officer would have to decide ultimately whether A could reasonably consider something as unacceptable. People vary; women are not all fragile creatures who cannot cope with these overtures. Some can take the worst types of sexual harassment in their stride and others find what might be considered mild sexual harassment deeply offensive. One must take the affected person as the starting point. There are victim impact assessments in cases of rape and sexual abuse and the impact on the person should be where we begin here also.

The formula I propose came from the Employment Equality Agency. They feel it accords with the many Labour Court decisions on sexual harassment. If something is not broken it should not be fixed, and if this is what the Labour Court uses to determine sexual harassment we should stick with that formula. A reasonable third party may not be the proper starting point to determine what is offensive and we should start with the victim.

Dr. Henry

The code of practice is not within the legislation and if the Minister cannot put it in, it should at least be encouraged. There must be fairness so that people realise certain behaviour is unacceptable. At a conference I attended on sexual harassment a woman barrister said there is no point in a firm saying to an alleged sexual harasser: "Look, you know you are doing this. We know you are and you know we know." That person will ask what he or she is doing wrong. There must be something to say that this behaviour will not be tolerated. If the Minister cannot put this in the Bill he might encourage the setting up of a code of practice. That is set up in some larger organisations so that there is something to refer to when there are complaints. There must be fairness to both sides. If the person described as the offender feels what he or she is doing is not offensive, it is hard on them if it has not been explained that such behaviour is not tolerated.

Mr. Taylor

One of the most important features of this Bill is the explicit provision made to ensure that sexual harassment is clearly prohibited. However, the provision has prove to be one of the more difficult ones to draft. Although it was not specifically referred to in the Employment Equality Act, 1977, there has been a progressive interpretation of that Act by the Labour Court which takes the view that freedom from sexual harassment is a condition of work an employee of either sex is entitled to expect. Denial of that freedom is considered discrimination under the Act.

However, a sexual harassment case appealed to the High Court put in doubt the liability of the employer for acts of sexual harassment in certain circumstances. I seek an explicit provision that will provide legal certainty on this issue. When the provision was being drafted the definition of sexual harassment in the 1992 EU Council recommendation on the subject and my Department's code of practice on measures to protect the dignity of women and men at work were examined. Many representations have been made to me to incorporate one of those definitions in the Bill.

However, I must have regard to the distinction between guidelines for best practice laid down in those documents and the legal requirements of text in primary legislation. This highlights the dilemma faced in making legislative provision for this issue. What arises in sexual harassment relates to the subjective experience of the individual who complains of the harassment. At the same time, in seeking to apportion liability for such action, statute law cannot easily avoid the use of an objective test.

The reasonable person test has been incorporated into this provision as a legal way of providing for an assessment of the offensive, humiliating and intimidating nature of any act from the perspective of a neutral observer. Fears have been expressed that this approach may weaken protection against sexual harassment in Irish law as it may be argued that reasonable persons, in the employment context of the complainant, do not consider the actions complained of to be offensive, humiliating or intimidating. I do not accept this argument.

The arbitration of what is reasonable would be for the Director of Equality Investigation, the Labour Court or the Circuit Court. The Labour Court has already adopted a progressive approach under the 1977 Act and there is no requirement for it to interpret this explicit provision in any less protective way by applying a less reasonable approach to harassment than it has to date. Furthermore, there is provision for approved codes of practice to be admitted in evidence in proceedings under the Bill. This means that where it appears that the content of such a code is relevant to any question arising in proceedings, the provision concerned must be taken into account.

Given that a code of practice has already been adopted in this area, I expect that approval for a code under the Bill on this subject should be in place soon after the Bill is enacted. This will reinforce the protective approach currently applied in respect of sexual harassment and will ensure that the good practice profiled in the code will inform the Director and the Labour Court in determining cases of sexual harassment that come before them. It will also enable due account to be taken of the subjective aspects of acts of this nature.

Senators Dardis, Henry, McGennis, Norris and O'Toole have raised concerns about the use of the reasonable person test adopted in section 23(2)(a) and (c). Representations have also been made to me on this text. The primary concern arising is that the victims of harassment may be discouraged from taking a case. It has been suggested that many victims of sexual harassment are vulnerable to accusations of being unreasonable and that they might see a reasonable person test as one that might favour more influential management employees who do not regard the conduct as offensive. As I have explained, I am satisfied that the reasonable person test would not work in this way and would not apply a less protective approach against harassment than currently operates. Nevertheless, in view of the concerns expressed I will re-examine this provision and the proposed amendments to see if the fears can be addressed.

Therefore, I propose to return to this section on Report Stage. The amendments before us go further than the reasonable person test. Senator Henry would like the deletion of the term "express" in section 2(b). Senator Dardis wants to broaden the cover in the section beyond sexually offensive behaviour and I will look at these matters on Report Stage also.

Although I have already indicated my reservations about a proposal for a statutory obligation along the lines proposed by Senator McGennis with regard to the publication of a code of practice on sexual harassment, I will look at this proposal again. I appreciate the constructive motives behind the proposal and I will reconsider this position.

I acknowledge the genuine concerns of Senators O'Toole, Henry and Norris about the reasonable person test. I propose to review whether any of the texts put forward as amendments on this issue can be taken on board to some extent or whether a more suitable alternative wording might be devised.

Mr. O'Toole

I am reassured to hear the Minister's views on this matter and I am happy to go along with them. In considering the issue, I would ask the Minister to bear in mind the thinking behind that form of wording — on which I took legal advice, incidentally. The question of the reasonable person sounds reasonable, if you will forgive the pun, as a way of dealing with many things.

Mr. Taylor

It is reasonable by definition.

Mr. O'Toole

Indeed. It may be reasonable in normal terms. Someone coming from a sheltered background might for various reasons not be able, to use Senator McGennis's words, to be as robust about some of these issues. What might be reasonable for the reasonable person might not be reasonable for such a person and might not be reasonable having regard to all the circumstances. That is where the difficulty arises, apart from the other issues which the Minister dealt with comprehensively in his response.

A similar, but obverse, difficulty arises for me in Senator McGennis's approach. She is absolutely correct in her arguments against the reasonable person. However, if, for example, I am alleging that I have been harassed, the test has to be what would be reasonable for me to consider harassment. Somebody would have to get inside my mind to do that. There is such a variation between people that a more robust person might consider something to be quite reasonable whereas a less robust person might consider it to be utterly unreasonable. There is a movement there. Regardless of which of the tests one applies, there is a lot of space for getting it wrong.

Senator Norris proposed the qualification of a reasonable person of the same sex. I do not think that advances the argument. It is a refinement but there is still too much room there. My proposal was that a reasonable person would be reasonable having regard to all of the circumstances. "All of the circumstances" would include the issues raised by the Minister and by Senators McGennis, Henry and Norris. That is a test which could then be applied. It is a checkable test. I ask the Minister to give this serious consideration.

I welcome the openness with which the Minister responded, I think it is very healthy and I look forward to dealing with it on Report Stage. I am not pressing the amendment on the basis of the commitment given by the Minister. I understand this is a tricky and difficult issue.

Mr. Dardis

The Minister is to be commended for being so reasonable about this matter, if I may use that word in the context.

Mr. Taylor

I am a reasonable person.

Mr. Dardis

As are we all. The problem is defining "reasonable". I appreciate the difficulty of establishing an objective standard. That is at the heart of the difficulty involved here. What would constitute an objective standard? That is one of the reasons why, in amendment No. 22, I suggested deleting in subsection 2(c) "which a reasonable person would consider to be sexually offensive, humiliating or intimidating to A".

I made the point earlier that where I have seen things of this nature occur, what I would have regarded as entirely unreasonable would have been seen by the person responsible for the harassment as entirely reasonable. There is a difficulty in finding an objective definition of what constitutes harassment.

Senator Norris made a point earlier in relation to the matter of an "express request" and its converse, the "implicit suggestion or request". The implicit aspect is actually dealt with in subsection 2(c) where it refers to "any other act or conduct——". This is a stage further than the express request and I think the implicit aspect Senator Norris had some difficulties with is covered in that subsection.

Mrs. McGennis

I thank the Minister for being so co-operative and reasonable in relation to this and other amendments. On Senator O'Toole's point that we would have to get inside the person's head, that is exactly what we would have to do and there is much established precedent for that. In cases of sexual assault and rape, a victim impact assessment is carried out which, I presume, gets inside the person's head to establish the level of harm and hurt that person has experienced.

I do not know whether a reasonable person needs to be a psychologist. If Senator Norris, on the basis of the jocose statement he made, was the reasonable person adjudicating a case in which I was the employee alleged to have gone to a room where President Clinton saw fit to drop his trousers, I think it would be horrific of him to consider that to be reasonable. Perhaps we would not find a reasonable person within this room who would agree with doing it that way. That ties in with the wording of Senator O'Toole's amendment. I have no hang-ups about the wording of my own amendment being accepted, I will be happy to see what the Minister comes back with on Report Stage. However, I have a slight problem with Senator O'Toole's wording "having regard to all of the circumstances". If one takes the example of the case to which Senator Norris referred, the fact that the girl went up to somebody's room could be considered to have been a circumstance in which she might have considered that she might have been subject to sexual harassment. Because somebody is in a given place at a given time — if that is what Senator O'Toole is referring to — does not mean they should expect to be harassed. The Minister knows what I am talking about. I will accept any wording which encompasses what we are trying to achieve. Again I thank the Minister.

Dr. Henry

I am very heartened by the Minister's reply. I would support what Senator McGennis has said; how a person feels about what has happened is also important. I understand the difficulties the Minister has in drafting this legislation. I hope that, because of this section, people will not start to favour the Circuit Court over the Labour Court. The Labour Court has been dealing extraordinarily well with these cases over the past years. I have not heard of many aggrieved parties leaving it.

As there is only a short delay in getting cases into the Circuit Court, thanks to the appointment of more judges by the Minister for Justice, it may seem preferable to lawyers to take cases to the Circuit Court. This may cause problems in relation to proceedings being held in camera rather than the assured procedures with which we are familiar in the Labour Court. I hope there will not be a tendency for that to happen because the victims of sexual harassment might find it far more difficult and expensive to go to the Circuit Court.

I hope the Minister may be able to find some form of wording which would take into account the fact that taking a sexual harassment case is an enormous thing to do for the person involved. Very often, among their colleagues, they are labelled "nuts and troublemakers" or something to that effect. It takes a lot of courage to do this and sexual harassment must be a very serious experience for them and it is very important to consider how the experience impacted on them. The Minister said he would return to the section on Report Stage. Am I to understand that he will introduce a Government amendment which takes these views on board?

Mr. Taylor

That is right.

Amendment, by leave, withdrawn.

Amendments Nos. 17 to 26, inclusive, not moved.

Section 23 agreed to.

Progress reported; Committee to sit again.