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Seanad Éireann debate -
Wednesday, 12 Mar 1997

Vol. 150 No. 9

Employment Equality Bill, 1996: Report Stage.

Acting Chairman

Only the proposer has the right to speak twice on each amendment. Amendment Nos. 1, 2 and 3 are related and may be discussed together.

I move amendment No. 1:

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

"‘disability' means the impact on an individual of a medically 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 disease 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 an 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;".

I second the amendment.

We have discussed this matter at considerable length on Committee Stage and I do not want to revisit the arguments. I thought the Minister was coming back to this aspect on Report Stage, but perhaps I was wrong.

The amendment has been changed slightly to include the phrase "medically recognised" which is different to what we suggested on Committee Stage. We return to the need for a more flexible definition of "disability". The Minister indicated on Committee Stage that having consulted with the various organisations, they were happy with the definition eventually inserted in the Bill. I understand there is still some disquiet among some of the caterers for disability as to the definition. They do not want an unduly medical definition. In some ways we have adopted a halfway house by stating, more precisely, a "medically" rather than "duly" recognised impairment.

It is an important issue and it would be preferable to have a definition of this nature. I thought there would have been a definition which would change matters compared to what was in the Bill as passed by the Dáil.

I have looked again at the Bill's definition of disability. I indicated on Committee Stage that the one criticism of this legal definition to which I have to respond is that it might fail to protect some category of person who might suffer prejudice on the grounds of disability, whether real or imputed. No amendments have been put down on that basis. All amendments tabled so far would have the opposite effect of removing protection from some group who are otherwise covered by my definition.

I appreciate that other definitions put forward better fit the category of persons with more serious disabilities. However, I am reassured that a prominent national body such as the Disability Federation of Ireland, representing persons with serious disabilities, appreciates my concern that the Bill's protection should extend beyond persons with more severe conditions and accepts the Bill's definition as it stands.

I would like to make it clear that the definition contained in the Bill is not the definition of a person with a disability. This is a very important point. I have confined the definition to the term "disability" only. This inevitably requires medical references. All legal definitions from other jurisdictions are caught by this need, both in original statute and frequently in detailed secondary legislation.

Although the medical dimension is profiled here as it is in other jurisdictions, that does not mean that unnecessary medical inclusion will result. The Australian authorities, who rely on a similar definition, have written to us on this matter. In a letter from the office of the Disability Discrimination Commissioner of Human Rights and Equal Opportunities in Sydney, the policy officer wrote that at the time of the debates concerning the Disability Discrimination Act, he was working in the disability advocacy sector and remembers asking similar questions to those being raised by the disability sector in Ireland.

Our greater concern was the desire to have a definition which left no room for debate about the right of any person with any disability to have the protection of law. Our experience of State-based law and our assessment of overseas law suggested that while the definition proposed was functional — I do not see it as a medical rather than social or political definition — it would allow for the widest possible inclusion. The intention of the human rights commissioner at the time was to ensure the exact opposite of the concerns being raised in Ireland.

Experience in Australia suggests that the definition used has been accepted in the context of this legislation and has not resulted in the introduction of inappropriate medical assessment. The definition is intended to assist in placing the emphasis on the provision of workplace accommodations rather than allow for exclusion of people following assessment. It was our assessment that the inclusion of a definition with clauses such as "substantially limits one or more of the major life activities", as in the American Disabilities Act, would lead to intrusive assessments.

Senators should note the reference to the provision of workplace accommodations. When I reviewed the definition in the Dáil, I was impressed with the case that was made for better addressing the work environment for the person with a disability. Senator Norris referred to this point in his contribution on Committee Stage. As a result I introduced explicit provisions in the Dáil in sections 16(3) and 35(4) to develop the concept of reasonable accommodation in employment. In this regard, I am satisfied the Bill caters for the social context of disability. In effect, I have included in the Bill a requirement for the employer to do all that is reasonable to accommodate the needs of the person with the disability. This requirement is qualified only to the extent that it would give rise to undue hardship to the employer.

There is well considered balance in this Bill with regard to disability. On the one hand there is a broad protective definition of disability and, on the other, there is a recognition of the needs of persons with severe disabilities and their right to expect those needs to be addressed. In the circumstances, I appeal to Senators to support this definition and ensure this most progressive measure is available to protect a broad range of citizens who can be exposed to prejudice and discrimination in employment.

The Government amendment seeks to achieve a common wording for disability in both this Bill and the Equal Status Bill, 1997. The Equal Status Bill terminology is being adopted in this Bill as it is reckoned to be the most comprehensive. The term "loss" implies that the function concerned existed at some time in the past for that individual. The term "absence", however, covers persons who were born without the function as well as those who may have lost the function since birth.

Amendment, by leave, withdrawn.
Government amendment No. 2:
In page 8, line 25, to delete "loss" and substitute "absence".
Amendment agreed to.
Government amendment No. 3:
In page 8, line 26, to delete "loss" and substitute "absence".
Amendment agreed to.

Amendment No. 6 is related to amendment No. 4. Amendments Nos. 4 and 6 may be discussed together.

I move amendment No. 4:

In page 12, after line 38, to insert the following:

"(j) that one is a member of a trade union and the other is not (‘the trade union membership').".

I proposed two amendments on Committee Stage, one of which sought to include the ground of membership of a political party. I told the Minister that if it came to a choice between the two I would prefer him to address the trade union membership issue as a priority. It is important that membership of a trade union should not be used by an employer as a reason for discriminating against a potential employee.

The Government amendment proposes that: "The Minister shall review the operation of the Act, within two years of the date of the coming into operation of this section, with a view to assessing whether there is a need to add to the discriminatory grounds set out in this section." I accept this amendment but could the Minister explain why it was not possible to accept my amendment?

I second the amendment, although I accept the Minister's goodwill that he will review the operation of the Act.

However, I wish to put on record other sentiments about this matter. The Minister might have difficulty with the trade unions. A view has been expressed that trade unions might not like a situation where, for example, one trade union in a place of employment secures in negotiations an advance in conditions of work or pay and so forth for its members, and might not wish those advantages to be passed to other employees who are not members of that trade union. That is a dog in the manger attitude that should not be sustained. Although it is practical in terms of advancing, in the immediate future, trade union membership and of advertising its advantages to the workforce, it is a mean spirited attitude to adopt.

I was employed by the College of the Sacred and Undivided Trinity near Dublin and I was a member of the Irish Federation of University Teachers. The union secured advantages for me in terms of my conditions of work, income and so forth but they were generously and properly applied to all employees, regardless of whether they were members of a trade union. That is proper practice. If trade unions are seriously concerned with improving the lot of the working classes, they should not seek narrowly to confine advances they have secured to members of their trade union exclusively. I hope the Minister will take this into account and, if he agrees, express this view to comrades in the trade union movement.

Any benefits deriving to a trade union from the fact that such advantages were secured only for their members would not be long lasting. The fact that a trade union is strong enough to secure such rights might encourage other people who had not previously joined the trade union to consider it a good idea. Even were the system to operate in the other direction and the trade union became weakened, a natural corrective will come into force. As the trade union becomes weaker and less able to fight, that will become obvious to those who were inclined to be just passengers and they will join or rejoin that trade union.

If there are difficulties with a trade union, I hope the Minister will ensure that the public is made aware of the fact that trade unions are taking a rather narrow view of their responsibilities to the working class. This argument would not wash with me. I am living proof of the fact that trade unions can survive well without such a mean spirited approach. Perhaps I am misjudging them and this is not their view. However, I understand from speaking with people in trade unions that it is a fear. They might have expressed it to the Minister, but it is not a sustainable argument nor is it a noble one. If it was exposed, the Irish public would take a dim view of such a narrow attitude and it is not in the interest of the trade union members.

I accept the Minister needs a process of consultation with the trade unions but I look forward to the inclusion, following that process, of membership of a trade union as one of the protected categories.

It is extraordinary that a trade union might oppose this amendment. It would be an example of restrictive practice that would not be tolerated in professional or business circles. It should not apply in the case of a trade union. It is also extraordinary that any member of the Labour Party could object to this amendment. It is something the Labour Party would have fought for over many years.

The Minister is a Minister of Government.

The Senator is provoking me to retaliate.

I can imagine what Deputy Upton and Deputy Costello would have said when they were Members of this House if a proposal such as this were put before the House. They would have been vociferous and vigorous in their advocacy of the amendment.

The Senator should ask and not assume.

I have no doubt about their attitude.

Can the Senator interrupt more audibly, please?

I thank Senator Norris for his assistance. In accepting the Minister's amendment, which I believe to be a reasonable one, I do not see why the particular amendment we are advocating cannot be included with the list. As I said on Committee Stage, it is either all or none. Why exclude political opinion as well as trade union membership? I cannot understand the reason for not including trade union membership. Senator Norris has illuminated me in terms of why there might be a difficulty but I must say it had not occurred to me because I find it extraordinary. The amendment is reasonable and even if the Minister is taking a two year period to review the section, I do not see why what we are proposing cannot be included and then be subject to review rather than being excluded and subject to review.

I welcome the fact that the Minister will review this. I am in sympathy with what Senators Norris and Dardis have said. One of the pillars of equality of trade unionism is that union members must not to be discriminated against by virtue of their membership. On Committee Stage, however, the Minister pointed out the present difficulties. The fact that he has agreed to review the situation within two years is welcome. We must ensure that whoever is Minister over the next two years is held to this.

The Minister's amendment is to be commended. I know Senator Dardis may find it surprising but I agree with Senator Norris that there certainly would be a problem with some unions if those both within and outside the union were treated in the same manner. No one should be discriminated against because of their membership of a trade union and I am sure the Minister would agree. In view of the circumstances in which the Minister has brought forward this amendment it meets the situation as well as it can at the moment.

I have already stated my concern about the Bill which is that, in spite of its good intentions, there is a serious danger it will inhibit the creation of employment. I will not repeat myself except in regard to the Minister's amendment that he will review the operation of the Bill and I welcome that. We may need to review it because we may find some parts of it are not working, although not in the way the Minister thinks. It may mean, however, there will be an avalanche of claims which are too difficult to handle. I would not be surprised if we needed to come back and review this, although not for the purpose the Minister stated.

Given the choice I would have asked him not to include the words "to see whether there is a need to add to the discriminatory grounds". I would have preferred to see "if there is a need for a change to the discriminatory grounds". I will leave it as it is, however, other than to say I think there is a need. I welcome the amendment that brings the Bill back for review within two years.

I do not think the Progressive Democrats should pre-empt what the Labour contribution might be. In relation to this section, on Second Stage I expressed concern that it should cover the grounds of trade union membership and party political affiliation. On the face of it they seem to be areas that should be protected, yet they are abused in practical terms every day of the week. However, I accept the Minister has expressed the difficulties in relation to trade union membership. Be that as it may, I was interested in Senator Norris's case concerning the benefits gained by a union being applicable to all workers involved. The downside is that if that were the case there would be little to be gained by being a member of a trade union and that would inherently weaken the effectiveness of the trade union movement. While there are many complications in that area I still welcome what the Minister has to say on it. Will he also address the issue of party political affiliation? In terms of the criteria used by employers, that has been a singular characteristic. There should be something in the next section to deal with it.

On Committee Stage, a number of Senators pressed strongly for proposals to include political opinion and trade union membership as additional grounds for protection under the Bill. I indicated then that I was sympathetic to such a move and that I would review the issue before Report Stage. I have done that and, as I indicated originally, there would indeed be real difficulty in bringing forward these proposals without an in-depth examination of these grounds. It is not, as Senator Dardis hoped, merely a question of adopting the unfair dismissals legislation model which, of course, continues to provide protection on these grounds in respect of dismissal, including constructive dismissal.

Members were willing to accept there could be problem including political opinion in the Bill. I have already mentioned a number of difficulties. Senator McGennis referred to another problem last week when she pointed to the difficulty of defining the ground. Should it relate to political opinion, affiliation or activity? These are matters to be carefully considered for another day.

Senators McGennis and Dardis did, however, strongly press the case for including protection in respect of the ground of trade union membership. I have carefully considered this proposal. I indicated on Committee Stage that, just as in the case of political opinion, there would also be difficulties with adding the trade union membership ground. I cited then the potential need for exclusions for arrangements in respect of staff associations in employment such as the Defence Forces and the Garda Síochána. I also mentioned that such a ground would prevent trade unions from the currently acceptable practice of giving preference in posts to their own members.

However, Senators were not swayed and highlighted the disposition of some large foreign owned firms to refuse to recognise trade unions and to discriminate against persons who are members of trade unions. Protection against such behaviour is certainly a worthy cause. I would very much like to pursue such an objective. However, when I looked into this issue in some detail in recent days I found that there are considerably more complexities than may appear at first glance.

The discussion on Committee Stage seemed to focus attention on the plight of the trade union member who suffers discrimination at recruitment stage. If the trade union membership ground is included, consideration would have to be given to the implications for closed shop agreements or other collective agreements. There are constitutional issues also concerned with the right to associate and, conversely, the right to dissociate.

The question of trade union recognition is one that has remained unresolved over the years in industrial relations. Apart from its constitutional law aspect, it is one about which employer and trade union interests have very different views. Anti-discrimination legislation of the kind that is before this House today may not be the appropriate vehicle to deal with this legally and historically fraught issue. However, the greatest difficulty arising if this ground is adopted in the Bill would be the implications for collective bargaining generally. Where a trade union negotiated a rate of pay for work or conditions of employment in respect of a category or grade of workers, other workers not belonging to that trade union could resort to pursuing equal pay or similar conditions with the union workers on the basis that the pay rates or conditions were discriminatory. This would represent a major upheaval of collective bargaining arrangements. It would invite employers to pursue future enhancements in pay and conditions through the equality redress system rather than by collective bargaining. Surely the essence of trade union activity is to secure better pay and conditions for members. Is it appropriate, therefore, to leave it open to members of one trade union or those not members of a trade union to secure improvement in pay or condition solely by means of piggybacking on the efforts of another trade union? Maybe the answer is yes but I doubt it. The vast bulk of this kind of discrimination that occurs in collective bargaining is perfectly acceptable in legal terms. Perhaps individuals, or groups in the case of trade unions, have a legitimate right to negotiate employment contracts and variations of them. However, it is neither opportune nor wise to answer these questions definitively in this legislation. I do not propose to include either ground in the Bill.

The consequences for the collective bargaining system must be examined in detail and the views of the social partners must be carefully considered. I accept that these grounds should be given detailed consideration. Accordingly, I have decided to examine the case for adding new discriminatory grounds to the Bill, such as political opinion and trade union membership. This legislative response signals the seriousness of the Government's commitment to consider the concerns of Senators on this matter and will allow the House to agree to the Bill, duly amended, on this point.

There is a joke which ends with a person saying. "All I was looking for was a cheese sandwich". I sought to achieve something I thought was extremely simple, namely, the protection of people who wanted to be members of trade unions. All of a sudden the discussion involves Partnership 2000 and the constitutionality of the Bill is being threatened. That is not my objective. I accept what the Minister said because I cannot contradict it.

I ask the Department to ensure that the issues raised in the Minister's reply to my amendment are addressed. I have no problem with breaking closed shops as I would like to protect the rights of workers who seek to be members of trade unions.

All I wanted was a cheese sandwich.

Amendment, by leave, withdrawn.

I move amendment No. 5:

In page 13, line 2, to delete "65" and substitute "70".

I was not present to move this amendment on Committee Stage. I accept that it is premature to make a major issue of this at the present time. It was intended to signal the direction our thinking will increasingly have to go in the context of increased life expectancy, pension burdens, etc.

I appreciate the way Senator O'Toole moved the amendment, Senator Henry discussed it and the Minister dealt with it.

I second the amendment.

Amendment, by leave, withdrawn.

Amendment No. 6 has been discussed with amendment No. 4.

Government amendment No. 6:
In page 13, between lines 6 and 7, to insert the following:
"(4) The Minister shall review the operation of the Act, within two years of the date of the coming into operation of this section, with a view to assessing whether there is a need to add to the discriminatory grounds set out in this section.".
Amendment agreed to.

I move amendment No. 7:

In page 13, lines 38 and 39, to insert the following:

"(4) That the Minister shall, within 12 months of this Act coming into force, introduce regulations setting out procedures for the use of a notional comparator for cases where no direct comparator exists.".

I tabled this amendment as I could not remember the Minister's commitment when I raised this issue on Committee Stage. I did not press the amendment because of the difficulty of achieving the objective of ensuring that women in particular do not get locked into low paid employment. Can the Minister remind me of his commitment on Committee Stage?

The Minister has provided under section 69 to direct the authority to bring forward a code of practice. It would be desirable that he direct the authority to bring forward a code of practice which would address not just discrimination in employment and equality of opportunity, but the problem of women-only employments, such as contract cleaning, where there is no male equivalent on which to draw a wage comparison. Perhaps the Minister can address this issue under section 69.

I second the amendment. I compliment Senator McGennis on the amount of work she has put into pointing out how difficult it is to get a comparator where women are involved in low paid employment. It is sad that after 25 years of equality legislation women are still paid almost exactly the same ratio, about 70 per cent, of the average male wage. I understand the Minister's difficulties but I wish to assure Senator McGennis that her efforts in raising this topic do not go unnoticed.

Senator McGennis was anxious that I review the issue of the hypothetical comparator. As previously indicated, I have a real sympathy for what Senator McGennis wishes to achieve. I have worked long hours on this subject but it has not been possible to forge a workable model on which to base a legislative provision of this nature. The Second Commission on the Status of Women shared my view as to the difficulty in introducing this concept and recommended instead that the low pay of women should be tackled by other means.

As I pointed out last week, I have not ignored the issue of equal pay for women in this Bill. I have extended the scope for finding a real comparator over place and time. That expands the availability of a real comparator over and above what was provided for in previous legislation. One no longer requires a comparator working in the same location or at the same time as was previously required. This is a very valuable improvement. However, the greater potential for making progress, particularly in highly segregated employment, will be through the development of the codes of practice referred to be Senator McGennis and use of equality reviews and action plans provided for under the Bill. The EU Commission has already published a code of practice on equal pay which contains useful advice on how to remove pay inequalities based on discriminatory assumptions or practices.

I examined Senator McGennis's novel proposal to develop a notional comparator model and introduce it by regulation over a period of time. However, I have been advised that primary legislation would be essential to spell out the principles and parameters. Regulations could only address matters of detail and an amendment along the lines proposed would be extremely vulnerable to constitutional challenge.

I thank the Minister for his efforts on my behalf. I know he fully accepts what I was trying to achieve. If it were possible I am sure he would have included the provision in the Bill. I had not noticed the changes regarding place and time. Given the Minister's comments on the equality audit, we must move step by step to achieve the objective.

Amendment, by leave, withdrawn.

Amendments Nos. 9, 10, 33, 40, 41, 56 and 57 are related to amendment No. 8 and all may be discussed together.

Government amendment No. 8:
In page 14, line 40, after "he" to insert "or she".

Amendment No. 40 in the name of Senator McGennis on Committee Stage sought to replace the gender specific personal pronoun in the subsection with gender neutral language. In general, the Bill has been drafted in gender neutral terms. However, there are half a dozen places apart from that identified by Senator McGennis where masculine gender personal pronouns occur. In these cases, it has not proved possible without unduly contorting the language to provide a gender neutral text. Following Senator McGennis's example, I approached the parliamentary draftsman on the issue who advised the use of both masculine and feminine personal pronouns in all cases but one, where a gender neutral text was devised. I acknowledge Senator McGennis's valuable contribution on this point.

Many Bills have used gender neutral language in recent years. As far as I can ascertain, this is the first Bill to provide not only gender neutral language but gender balance in the matter of personal pronouns where gender neutral language cannot be achieved. I hope this new approach will provide a model for other legislation to follow. I commend these amendments to the House.

I welcome the Minister's amendments. Some years ago I recall putting an Interpretation Bill on the Order Paper to address this point but was told by the Government that it was unnecessary. Almost simultaneously, the leader of the Government, Mr. Haughey, was telling the other House that it was necessary. The Government then grabbed my Bill, which I had already surreptitiously grabbed from the Fine Gael Party, and legislated accordingly.

Fine Gael is always ahead.

It shows how far we have travelled in terms of our sensitivity and response to the absurd reaches of political correctness. I inadvertently referred to the "draftsman", to which the Minister just referred without rebuke, and was dealt with severely for not referring to "draftsperson", although the person involved was gender specific and was a man.

Amendment No. 41 in my name refers to the fact that the term "he" was used. I thank the Minister for accepting the recommendation and I withdraw my amendment.

Amendment agreed to.
Government amendment No. 9:
In page 19, line 8, after "his" to insert "or her".
Amendment agreed to.
Government amendment No. 10:
In page 19, line 22, after "his" to insert "or her".
Amendment agreed to.

Amendments Nos. 11 and 12 are related and may be taken together.

I move amendment No. 11:

In page 20, lines 18 and 19, to delete "or has a propensity to engage,".

I expressed concern about this on Committee Stage and am still unhappy with the use of the phrase "or has a propensity to engage" as distinct from "engages". I hope the Minister can reassure me because I am not clear how it is envisaged this can operate in a manner that does not intrude on the legitimate civil liberties of individuals. If it were simply a question that the employer is aware on the basis of a criminal conviction that the individual engages in any form of unlawful sexual behaviour, there would be no problem. However, I presume one cannot have a criminal conviction on a propensity to engage as distinct from engagement. This raises the question of reliable information that the individual has a propensity to engage. How can the informant know this unless individuals are engaged? Much of our civilisation consists in our repressing our propensities to engage in evil behaviour.

I am concerned that, given the kind of society in which we now live, this gives scope for malicious and vicious imputation of a so-called propensity to engage from motives which, on closer scrutiny, could be reprehensible. Once there is the slightest rumour of anything to this effect, it would be very difficult for an employer to discard it because if something did go wrong it would appear irresponsible not to have credited it.

Nevertheless, this represents an intrusion into privacy which is difficult to justify on the basis of what is before us. While such behaviour is revolting and while paedophiles, especially, have a capacity to conceal behaviour, behaviour rather than propensity to behaviour would be at issue in such cases. This opens the floodgates to unjustifiable imputations and accusations.

While the suffering of any form of sexual harassment is appalling, it is also a traumatic experience to be unjustly accused of a propensity in that direction. I hope there is some way of reconciling the need to protect vulnerable individuals with the need to also allow people their good name and allow them a mechanism to not just defend themselves against false accusations but for not allowing them to be entertained in the first place. While this is a difficult issue, I hope the Minister sees my dilemma. I also hope he accepts that the phraseology raises serious issues.

I second the amendment. This is a busybodies' charter. It allows people to make serious allegations which may be unfounded. I would be prepared to accept the term "propensity to engage", but to use it in conjunction with "other reliable information" allows that action can be taken on the basis of information regarding a propensity. It is a question of one or the other. For example, monks taking a vow of chastity does not mean that they do not have a propensity to sexual activity or children's propensity for ice cream does not mean that they get ice cream. The fact that one has a propensity does not necessarily indicate that the person is practising the activity.

I concede that this is a very difficult area. The onus must be to prevent anything from happening. However, it is a question of finding a balance. In this instance it is possible for a reputation to be destroyed or to make it extremely difficult for somebody to find employment on the basis of innuendo.

The Minister's amendment goes some way to addressing this problem, but it does not go far enough. If one were to leave in the phrase "propensity to engage in any form of sexual behaviour which is unlawful" it should be on the basis of reliable independent information. On Committee Stage I tabled an amendment which identified the health board or the Garda as that source, although I am prepared to consider other voluntary or statutory agencies. The difficulty I have is the conjunction of reliable information with the term "propensity to engage" because together they give a wide scope for misuse and for reputations to be destroyed.

Senator Lee referred, by pronunciation, to "PD-ophiles". I presume this means people who have the propensity to engage in political activity with the Progressive Democrats. That is a perversion of which I strongly disapprove.

There is no reliable information.

The fundamental principle, which is respected in this jurisdiction, that people are innocent until proven guilty comes into question. Under this section people would not be innocent until proven guilty because there can be a form of guilt by attainder which I do not consider acceptable. It is worrying that the margin should be so broad in the terminology used —"information" that the individual has a "propensity to engage" in unlawful sexual activity. That must be a matter of subjective conjecture.

The matter of conviction for sexual activity which is unlawful is already covered. We are not talking about the information derived from a scrutiny of court records and convictions. Thus, we are not talking about somebody who has been demonstrated to have engaged in these reprehensible acts. Rather we are referring to somebody whom a third party may imagine has the capacity to commit these acts. I agree strongly with my colleague, Senator Dardis——

Does the Senator have a propensity toward "PD-ophilia"?

I am afraid I do occasionally. A reputable psychiatrist would indicate that at the core of the human personality there lies a complex area of urges which in civilised society, as Senator Lee pointed out, are held in check. It would be possible to maintain that many people have all manner of outlandish propensities, although they are marginal. What degree does one have to demonstrate and how is it demonstrated? How can there be reliable information that one has a propensity to engage in such activity unless that is clearly demonstrated? If it is so demonstrated the people should be charged.

I recall from some years ago the case of the actor who played Len Fairclough in "Coronation Street". He was at the swimming baths with some children and he was supporting one of the children while teaching him or her to swim. A busy-body reported him for sexual harassment of the child. The story ran in the newspapers for months and his career was almost ruined. It turned out to have been a complete misconstruction of the situation. As this provision in the Bill stands somebody could be dismissed legitimately on the word of a third party with no criminal act having been committed.

I ask the Minister to consider this principle, with which I am sure he agrees, that people are and should remain innocent until proven guilty. We should not follow the course of guilt by attainder. I am sure the Minister agrees that if a person is not guilty he or she should not be punished. What else is the loss of one's employment except punishment? Although the Minister's motives are worthy, the consequences may be quite different and may result in the punishment of the innocent. It is not right for the House to pass legislation which could possibly have such results. It is not acceptable that, in order to ensure that one potentially guilty person is punished, many innocent people should also suffer.

We discussed this issue at length on Committee Stage and I supported the Minister in trying to strike a balance in favour of the vulnerable. I understand Senators' comments that long-term damage could be caused by unfounded allegations. There was a suggestion that this could be a charter for busybodies. I presume the Minister is attempting to cover the case of a person who flees another jurisdiction where he or she may or may not have been charged and an employer comes into possession of information about allegations made in the other jurisdiction. It has been repeatedly stated in the House that there must be a means of tracking people to ensure they cannot commit crimes.

They are innocent even if charged.

I understand Senator Norris's point but the Minister's provision tries to protect the innocence of children. While I understand the points made by other Senators, the Minister's amendment is to protect the young and the vulnerable. I find it difficult to disagree with that.

It is very serious to discriminate against a person on the basis of what is described as "reliable information." However, the Minister's amendment is very important with regard to access to minors. I am relieved that he has included in the section a reference to "other persons who are vulnerable". The Minister may have read the astonishing reports of the case of the sexual harassment of patients in mental institutions. At times it can be very difficult to bring charges in such cases. However, I think the Minister has done his best with a serious matter. I agree with the concerns expressed by Senators Lee, Norris and Dardis about basing allegations on information. It is a pity we could not have nominated sources for reliable information in the Bill although I understand the reasons that is not possible. I share Senator McGennis's concerns and I will support the Minister's amendment.

As I said on Committee Stage, this was an extremely difficult section to frame. It is not the normal case in which a person is innocent. We are dealing with an unusual and special situation where a particular protection is required. Had all other things been equal, the section would not have been framed in this way. However, we are addressing a very special, narrow kind of situation in which all other things are far from equal.

To try to highlight and narrow down what I am addressing here, amendment No. 12 points to the direction of the ill which I am trying to contain. Does any Member seriously want to risk putting in danger any child or other disadvantaged person, as referred to by Senator Henry? I doubt they do, including Senator Norris.

Senator Lee asked if I understand his difficulty. Yes I do but, by the same token, I appeal to him to understand my difficulty and my responsibility to protect that most vulnerable section of our community — children. They are in danger; this is not some vague concept which might happen. We know about the cases which have happened and their effects. We cannot take risks with this and we must bend away from the normal balance which one would apply in any other case. This is a variation on what one would apply in any other case but this is not a normal situation.

We must be extraordinarily careful not to leave ourselves open at some future date to the charge that something happened to a child as a result of our being too balanced on this issue. I do not think any of us want to be subject to criticism or attack on that account but, if we are not extraordinarily careful about it, that could happen.

In regard to the wording "engages or has a propensity to engage", the word "engages" is in the present tense. The amendment seeks to delete the words "propensity to engage". A person might not be engaging now and might not have engaged for some time but there might be grounds for supposing that the propensity to engage still exists. The word "engages" might not cover such situations.

Of course, Senator Norris is correct that a person is innocent until proven guilty. However, that has no real relevance to what we are talking about here; it has a relevance to a criminal prosecution, which this is not.

I accept there can be adverse consequences for a person involved in those cases. However, there is always the protection of a hearing before an equality officer. It is not the case that any employer or potential employer can just state they have reliable information; that is not the end of the story. The person may bring the employer to the equality officer who will decide whether it was reliable or adequate information. My intention is to focus section 16(4) by the insertion of the new section 16(5), which I hope will be of assistance in enabling us to proceed in that way.

I thank the Minister for his explanation. Amendment No. 12 clarifies the intention, in a sense, although I do not think the principle it incorporates is in any way affected. It simply focuses the concern on a more limited group of particularly vulnerable people, which I accept. However, I am still uneasy about the way the balance has been struck.

I accept the Minister's difficulties. He stressed that the word "engages" is in the present tense. However, the Bill states "on the basis of a criminal conviction of the individual ... that the individual engages...". By definition, a criminal conviction is in the past. I think anybody would assume that once a person has such a criminal conviction their propensity to engage in such behaviour continues. That is on the basis of court evidence and proof rather than suspicion, accusation, allegation or what is called reliable information. That is an entirely different category, and requires no justification or clarification, from the propensity basis, which is not based on a criminal conviction but on "reliable information". How can it be reliable information unless there is evidence of something having occurred?

Senator McGennis used the phrase "allegations in another jurisdiction". I draw attention to the distinction between reliable information and allegations. It does not matter whether the allegations are made in this or another jurisdiction, the question is whether they are reliable. That wording does not resolve the problem.

I am sorry it does not seem possible to find a phraseology which guards against the danger of false accusation. Once such an accusation is made it is impossible for the accused individual to escape the taint of the allegation for the rest of his or her life; such allegations linger forever in our small and incestuous society. If it is not possible to find a superior phraseology I will have to accept the Minister's phrasing because there has to be protection for the vulnerable. However, I am very sorry it does not seem possible to achieve a phraseology which guards more effectively against the fear I am expressing.

Amendment, by leave, withdrawn.
Government amendment No. 12:
In page 20, between lines 20 and 21, to insert the following:
"(5) Without prejudice to the generality of subsection (4), that subsection applies in particular where the employment concerned involves access to minors or other persons who are vulnerable.".
Amendment agreed to.

Amendments Nos. 14 to 20, inclusive, and amendments Nos. 25 to 30, inclusive, are related to amendment No. 13 and all may be discussed together by agreement.

Government amendment No. 13:
In page 23, line 40, after "employed" to insert "(in this section referred to as ‘the workplace')".

I wish to place on record my appreciation of the extremely constructive debate on this provision by Senators last week. I am also grateful to other groups, particularly the Employment Equality Agency and the Irish Congress of Trade Unions, which also pressed for some adjustment in the present text.

I was particularly struck during last week's debate by the divergence of views on what would constitute the best way forward. On one hand, some Senators sought to highlight the need for harassment to be defined by reference to the views of the victim. On the other hand, other Senators sought to enshrine a more objective approach, drawing on principles of fair play and equity. I know exactly from where Senators on both sides of this argument are coming as I wrestled with these considerations throughout the drafting process. I have listened carefully to what Senators said and I hope the amendments I have tabled to section 23 will be welcomed as an effective response to the concerns raised.

The first two amendments are technical amendments to subsection (1) which derive from the creation of a new subsection (2). This substantive amendment provides more explicitly for protection against harassment whether it occurs in the workplace in the course of employment or otherwise where, by reason of rejection or acceptance of that harassment, the victim would be treated differently in the workplace or it would be reasonable to consider that the victim would be so treated. This strengthens the provisions of the section as regards quid pro quo harassment and draws on a similar provision in the Equal Status Bill. I commend it to the House and trust it will be supported.

The substantive amendment also incorporates a new subsection (3) which replaces the former subsection (2) that applied the reasonable person test. Senators will note I have moved from the reasonable person test in this regard. I ask Senator Norris in particular to note this, notwithstanding his suggestions about political responsibility in responding to amendments. The description of acts of harassment in paragraphs (a) to (c) are still as outlined previously, although I have removed the term "express" in paragraph (b) as Senator Henry requested.

I thank the Minister.

The test for determining whether the acts constitute harassment is set out at the end of the new subsection. This retains an objective test of reasonableness by application of what could reasonably be regarded as offensive, etc. However, it also ensures that what could be regarded as reasonable must take due account of the views of the victim. This concern was emphasised by Senator McGennis in particular. The reference to unwelcome conduct and the focus on what is offensive to A specifically encompass relevant subjective considerations. In determining what is offensive, therefore, it is not only relevant but required to have regard to the position of A, the victim.

I am satisfied this wording better reflects the Labour Court approach in this area to date. It will also facilitate reinforcement of the importance of the victim's views by means of an approved code of practice along the lines of the current widely accepted code prepared by the Employment Equality Agency in consultation with the social partners. This revised subsection achieves another objective. It specifically responds to Senator Dardis' amendment No. 25 on Committee Stage which sought to broaden protection beyond what was sexually offensive to cover what is offensive on the gender ground. The revised subsection provides protection from harassment which may not be sexual in nature but which is based on attacking the dignity of workers by reference to their gender. I am sure everybody can think of examples where disparaging remarks relating to gender, but without a sexual connotation, can be most offensive.

A further technical amendment arises in the old subsection (3), which would, as a consequence of my amendments, become subsection (4). It derives from the creation of the new subsection (2) and the need to refer to workplace in lieu of the place of employment.

The amendment to subsection (4) arises because the concept of harassment beyond the workplace has been introduced in the new subsection (2). It must be borne in mind that this section targets the employer to prevent harassment. Therefore, it is the employer against whom a remedy is available in the Bill and it need not be the employer who is perpetrating the harassment. When we try to provide protection beyond the workplace, therefore, it is necessary and only fair to give the employer some scope to defend a claim of harassment where it would not have been practicable for the employer to prevent the harassment concerned. In the case of harassment outside work, the employer can show steps taken to prevent the victim being treated differently at work, or where different treatment has taken place, that the effects of that treatment have been reversed.

We now have a finely tuned and substantially enhanced sexual harassment provision based on these amendments. I am wholly indebted to the Senators who contributed to the debate on this matter. I hope they will recognise all the factors on which they expressed concern have been suitably addressed in the amendments.

I am also introducing a number of amendments to section 32, which follow directly from the improvements proposed for section 23 relating to sexual harassment. Two technical amendments adopt the term "workplace" in lieu of place of employment. I am introducing another amendment equivalent to the quid pro quo provision in section 23 which seeks to ensure that different treatment in the workplace consequent on rejection or acceptance of harassment, whether in the workplace or elsewhere, will also be prohibited. In a new subsection (3) I am providing an equivalent subsection to section 23(3) which elaborates on who might constitute a client, a customer or other business contact. Omission of such a text in section 32 appears to have been an oversight which I am happy to rectify.

I am introducing an amendment to the current text of section 32(3) to ensure that protection is afforded from harassment not only when the victim belongs to a discriminatory category covered by the Bill but also where the victim is believed by the harasser to belong to such a category although the victim does not belong to it. This will make it unlawful to harass a person in employment on the grounds that the person was thought to be a member of the travelling community, although the person is a member of the settled community.

I am also introducing an amendment to subsection (3) which removes the reasonable person test and introduces the concept of unwelcome conduct which could reasonably be regarded as offensive to the victim. This is directly linked to the model put forward for section 23 and I hope it is acceptable to the House as a better approach. In relation to subsection (4), I am introducing an amendment along the lines of that for section 23 which addresses the reasonable steps defence by the employer both as regards harassment in the workplace and outside it which results in discriminatory treatment at work. I trust Senators will support these amendments and allow the harassment model in the section to adopt the improvements already proposed for sexual harassment.

Reasonable Members of the House must concede that the Minister has taken on board the terms and spirit of the amendments moved on Committee Stage. It was difficult to find a reasonable person in the Chamber last week because Members sought to achieve completely different objectives. However, it appears the Minister has taken those points on board and considerably improved the section. I said on Committee Stage that my objective was to ensure that the effect of sexual harassment on the victim was established in the section, while other Members wanted to ensure that a reasonable person would judge the effect. I said I would not insist on the inclusion of the wording of my amendment. I am glad I did so because the Minister's amendments immeasurably improve the section. I have no hesitation withdrawing my amendment.

I congratulate the Minister on a fine and comprehensive set of amendments which, as Senator McGennis said, improve the Bill. I unhesitatingly withdraw amendment No. 17 because the Minister has met every consideration in it. He will recall that on Second Stage I pointed out — as others did — that the inclusion of the word "express" omitted the more insidious and implicit type of harassment.

I am also glad the Minister introduced the notion of unwelcome attention. It is important that we are not too grim in our attitude towards this area but the Minister has balanced the position extremely well regarding the imputation of membership of a group. This may not be dishonourable because there is nothing wrong with being a member of the travelling community or with being gay.

For some people, the ludicrous attachment of labels of this kind to people in the workplace can be very humiliating and is intended to be so. I am aware, as I am sure the Minister is, of a number of tragic cases in which, without any physical action, imputations about the sexual activity or the social background of people in the workplace have led to tragic consequences. One young person was persecuted and mocked to such an extent that they were led to take their own life.

The Minister has taken on board the sentiments expressed in this House, has gone away and, with his draftspersons, has come up with a very fine series of amendments. I welcome them and I think the debate we had last week shows the value of this House. I am sure the Minister will agree that, as a result of the work we have done co-operatively as a Legislature, the Bill is now improved.

It is praise all round for the Minister. I compliment him on this amendment; I am glad he took out "express" as I had requested in amendment No. 21 on Committee Stage.

I did not see the Minister at the conference on sexual harassment in Dublin Castle but he must have had some spies there because there is now much more of a spirit of what trouble can be resolved regarding sexual harassment in his amendment than was in the original section of the Bill.

I am particularly glad the Minister has put in amendment No. 15 "Without prejudice to the generality of subsection (1) in its application in relation to the workplace and the course of A's employment..." because this is terribly important. If one reads any of the literature the Susie Lampugh Trust has brought forward and the concerns it has had about problems which do not just arise within the workplace but within the course of the person's employment, this is most important. I congratulate the Minister and his officials. I am very pleased with the amendment.

It would be most unfortunate if the praise was not unanimous. On that basis, I join in thanking the Minister. One of the things which has impressed me is that the range of amendments which were tabled on Committee Stage were quite diverse and the Minister and his officials are to be congratulated on the way they reconciled the diverse aspirations in those amendments with the Government amendments. I notice the Minister has taken on board the problems in my Committee Stage amendment No. 25. He has also taken on board the proposal in amendment No. 17 which concerned the deletion of certain words. I thank him again and we will support the Government amendments.

I join in congratulating the Minister in taking on board the views of the House. As Senator Norris said, it expresses the value of the House in that there was very serious and prolonged debate on these issues. Points were forcefully put, the Minister listened attentively and his officials responded in amalgamating many of the views and presenting them before the House by way of these amendments. I congratulate the Minister on his open approach.

As a Labour Party Senator, I cannot be the only one not to congratulate the Minister as he addresses our concerns so comprehensively, effectively and well. This is yet another moment of congratulation for him and his staff. The issue of sexual harassment was one which hung around for many years and was touched on in terms of the formulations of codes of practice, etc. However, as a member of the women's rights committee, we were extremely concerned that the issue would be addressed in some shape or form. I am delighted to see it being addressed so comprehensively and thoughtfully in the response to what has been a very good debate in both Houses on the issue, particularly in the Seanad. I congratulate all those involved in writing this into the Bill before us today. It is effective and welcome legislation which is dealing with sexual harassment at long last.

Amendment agreed to.
Government amendment No. 14:
In page 23, line 42, to delete "at that place" and substitute "in the workplace".
Amendment agreed to.
Government amendment No. 15:
In page 24, to delete lines 8 to 19 and substitute the following:
"(2) Without prejudice to the generality of subsection (1) in its application in relation to the workplace and the course of A's employment, if, in a case where one of the conditions in paragraphs (a) to (c) of that subsection is fulfilled,—
(a) B sexually harasses A, whether or not in the workplace or in the course of A's employment, and
(b) A is treated differently in the workplace or otherwise in the course of A's employment by reason of A's rejection or acceptance of the sexual harassment or it could reasonably be anticipated that A would be so treated,
then, for the purposes of this Act, the sexual harassment constitutes discrimination by A's employer, on the gender ground, in relation to A's conditions of employment.
(3) For the purposes of this Act,—
(a) any act of physical intimacy by B towards A,
(b) any request by B for sexual favours from A, or
(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),
shall constitute sexual harassment of A by B if the act, request or conduct is unwelcome to A and could reasonably be regarded as sexually, or otherwise on the gender ground, offensive, humiliating or intimidating to A.".
Amendment agreed to.
Amendments Nos. 16 and 17 not moved.
Government amendment No. 18:
In page 24, lines 23 and 24, to delete "at the place where A is employed" and substitute "in the workplace".
Amendment agreed to.
Government amendment No. 19:
In page 24, to delete all words from and including "practicable" in line 30 down to and including line 31, and substitute "practicable—
(a) in a case where subsection (2) applies, to prevent A being treated differently in the workplace or otherwise in the course of A's employment and, if and so far as any such treatment has occurred, to reverse the effects of it; and
(b) in a case where subsection (1) applies (whether or not subsection (2) also applies) to prevent B from sexually harassing A (or any class of persons of whom A is one).".
Amendment agreed to.
Government amendment No. 20:
In page 25, line 21, to delete "that" where it firstly occurs.
Amendment agreed to.

Acting Chairman

Amendments Nos. 21, 22, 23 and 24 can be discussed together by agreement. Is that agreed? Agreed.

I move amendment No. 21:

In page 26, line 2, to delete "violent".

I am concerned with how the Minister envisages this section operating in practice and I would like to tease out the implications of the precise phraseology and the use of the term "violent". As I understand it, an officer of the Garda Síochána or a prison officer, depending on the context, has to make dispositions, presumably in advance, to cope with a situation that may arise. When is violence presumed to have commenced or when is there a suspicion that violence may commence or a fear that violence may be potentially involved? How does it affect the manner in which the authorities cope with, or anticipate, the implications of what may arise? With regard to "in order to guard, escort or control violent individuals or to quell riots or violent disturbances", I want to raise a technicality; what is a non-violent disturbance? When is a disturbance violent or non-violent?

With regard to "violent individuals", does that mean individuals have to demonstrate violence before they can be identified as violent or, if I may quote a phrase used earlier, are individuals who are known to have a propensity for violence to be eligible for treatment and disposition of the resources of the law in this manner? Let us consider a practical situation that may arise. Suppose there are known subversives, drug dealers or people known to be potentially active in that area in a crowd, do the authorities have to make their dispositions on the assumption that this crowd is peaceful until such time as it actually turns violent at which stage it may be too late to take the measures necessary to control the crowd effectively? I am concerned with the operational implications of these proposals before us.

The definition of violent and what the legal constraints on the authorities may be form one possible interpretation, as I see it, of the phraseology here. I am not at all disposed to be adversarial or awkward in this. Let me put it like this, however important equality is, security is even more important. One cannot have equality in a State unless security is guarded in the first place.

Acting Chairman

Our time is up, I know the Senator was in the middle of his argument but he will have the opportunity to continue when we return to this Bill at 8 o'clock.

Debate adjourned.
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