The purpose of this Bill is to outlaw discrimination on nine distinct grounds: gender, marital status, family status, sexual orientation, religion, age, disability, race and membership of the travelling community. The scope of the Bill is comprehensive and deals with discrimination in work related areas, from vocational training to access to employment, and employment conditions generally, including training, work experience and advancement within employment. When enacted, it will give Ireland one of the most modern employment equality codes in Europe.
Senators are aware of the fate of the Employment Equality Bill, 1996, which passed all Stages in both Houses of the Oireachtas less than a year ago. The entire Bill was referred to the Supreme Court on 3 March 1997 by the President under Article 26 of the 1937 Constitution. On 15 May 1997 the Supreme Court held that three provisions of the Bill were repugnant to the Constitution. On taking office, I ensured priority was given within the equality agenda to examining the constitutional issues raised in the judgment and returning the Bill, appropriately amended, to the Oireachtas.
It is ironic that the Bill being considered today, the Employment Equality Bill, 1997, has two distinct advantages over Bills which may come before this House in the current session. It is almost identical in its provision to the Employment Equality Bill, 1996, which was considered by the previous Dáil and Seanad within the last 15 months and which passed all Stages in both Houses. I hope the recency of the Seanad debate, even if the composition of the House has changed somewhat, will facilitate examination of the Bill. Secondly, the Bill has been examined thoroughly by the Supreme Court, particularly as regards a range of key and controversial provisions, and has been found constitutionally sound except for the three provisions already mentioned. I hope these facts will set a backdrop for balanced and informed deliberations in both Houses.
The Bill was found by the Supreme Court to contain three provisions which were repugnant to the Constitution. Two of these provisions are of a technical nature and were amenable to satisfactory redrafting in the Bill which is now before the House. The third provision which the Supreme Court found to be unconstitutional, that of reasonable accommodation for people with disabilities, raises profound issues, both legally and politically, about the scope available to legislators to deal with this socially important concept.
The 1996 Bill required an employer to make a reasonable accommodation for an employee with a disability unless the cost to the employer of providing the reasonable accommodation gave rise to undue hardship. The Supreme Court found that this provision amounted to an attack on the property rights of the employer under Article 43 of the Constitution. The advice I have received and the subsequent changes made to the Bill allow for retention of the disability ground in the Bill.
The Bill defines disability to include the absence of bodily or mental faculties, having chronic infectious disease, whether manifest or not, and a wide range of learning and personality conditions. The implication of the Supreme Court judgment is that an employer or a prospective employer may be obliged by law to provide a reasonable accommodation to an employee with a disability. However, the employer cannot be similarly obliged to bear the costs of providing such a reasonable accommodation. The Bill requires an employer to provide special treatment and facilities for a person with a disability unless the cost of such provision to the employer is more than a nominal cost. State supports for workplace adaptation and equipment will be additional to any cost borne by the employer.
The Commission on the Status of People with Disabilities has recommended the preparation of a disabilities Bill. The options for developing proposals for such a Bill will be examined in my Department. There is clearly an opportunity to revisit the question of statutory provision for reasonable accommodation in the context of specific disabilities legislation. For the present, I have addressed this issue constructively and fairly in the Bill being considered today.
I know certain representative groups have reservations about aspects of the Bill in so far as they relate to people with disabilities. I know too that those groups recognise that the provisions of the Bill as they relate to people with disabilities represent an important step towards ensuring that Irish people with disabilities will in future be able to exercise their right to participate on an equal basis with other employees in the world of work. Research shows that households headed by people who are unable to work due to illness or disability are one of the groups in society most likely to encounter poverty and experience basic deprivation. It is estimated that the unemployment rate for people with disabilities is as high as 80 per cent. There are a variety of reasons for this unacceptably high level of unemployment. I am hopeful that the protection offered by this Bill, when it becomes law, will have a positive impact in reducing this figure and in increasing the awareness among employers of the availability of a highly motivated and reliable cadre of actual and potential employees, whose disability is entirely incidental to their value as responsible and effective workers.
The Employment Equality Bill, 1997, outlaws discrimination not only against people with disabilities, but also against eight other categories of people. Twenty one years ago the Employment Equality Act, 1977, outlawed discrimination against women. The Act sought to bring about a change for the better in the behaviour of employers mainly towards women employees. It has helped significantly to change the shape and nature of the Irish workforce in a fundamental way. This legislation will over time improve the position of other groups in the workforce including people with disabilities, members of the traveller community, older workers, people of minority races and other groups covered by the Bill.
It is perhaps difficult to believe that a relatively short time ago society took it for granted that women would occupy the lowest rung of the career ladder in most places of work and would retire on marriage or when the first child was born and would devote the rest of their lives entirely to home duties. There was a general expectation at that time, with some notable exceptions, that successful businesses were run by men, banks were managed by men, corporate boards were chaired by men, Departments were administered by men and a place at the Cabinet table was restricted to men. All that has now utterly changed. It is accepted that a woman may choose any of these professions and, should she aspire to it, work to secure a top job in business, the board room or Cabinet. The Bill being considered today has the potential to change in just such a radical way the structure of the Irish workforce as did its predecessor of 1977.
Over the past 25 years there has been a massive growth in the number of women in the workforce. Between 1971 and 1996 the number of women in the workplace grew by 212,000 reaching 488,000 in 1996. The growth in the number of women at work has accelerated in recent years. For example, the growth of 102,000 women in the workplace in the five years between 1991 and 1996 almost equalled the growth of women's employment in the previous 20 years. The most recent labour force survey published by the Central Statistics Office in October 1997 estimated that the number of women at work exceeded 512,000. Women now account for four out of every ten people at work.
These changes are particularly marked in the case of married women. In 1971 only 14 per cent of the women in the workforce were married. Today, approximately half of the female workforce is married. These changes have brought about a significant shift in the structure of the world of work and have led to a growing awareness of the need to reconcile work and family life, to safeguard competitiveness and the effectiveness of enterprises while permitting both women and men to devote a sufficient amount of time to their family responsibilities.
Clearly, women have steadily increased their participation in the workforce. They have not been equally successful in attaining positions at the higher levels of the professions or in the organisations in which they work. It is a fact that women have been the victims of discrimination, both direct and indirect. There is a continuing trend for women to congregate in the professions and industrial sectors where low pay has traditionally been the norm.
The position in relation to women in many professions and enterprises indicates a lack of progress in reaching the upper echelons of these organisations. For example, in the medical profession in 1994 women represented 35 per cent of medical and 46 per cent of dental staff in health boards. In the same year, only 20 per cent of medical consultants employed by the health boards were women. The challenge now is to put measures in place which will help women build on the gains they have already secured in the labour market.
This Bill will encourage a more proactive approach to tackling the present segregation of women in the labour market which occurs both on a sectoral basis and vertically within sectors. The new Equality Authority has been charged in the Bill with statutory powers to conduct equality audits, both in employment generally and in particular sectors, so that progress towards equality can be reviewed and action plans put in place to achieve equal opportunities. These powers should be utilised to foster a consciousness among good employers of the need to work towards equal opportunities in practice. The Bill will also allow employers who wish to do so to put in place positive action measures geared towards the removal of existing inequalities which affect women's opportunities for access to employment, training and promotion.
A key issue addressed in this Bill is age discrimination. Traditionally, this type of discrimination has been a feature of the labour market. A brief perusal of the situations vacant sections of our daily newspapers will confirm that many firms have a strong preference for recruiting younger workers. There might have been a sound underlying rationale for this preference in a society where skill lasted a lifetime and recruitment to a big commercial or public service institution offered a "job for life". However, the structural change which has been taking place in the labour market no longer supports such unthinking discrimination, either on grounds of economics or natural justice.
The world of work is changing beyond recognition. The pace of this change is fast and can be expected to gather momentum. The Department of Enterprise, Trade and Employment's White Paper on human resource development estimates that in ten years time 80 per cent of today's technology will have been replaced but 80 per cent of today's employees will still be in the workforce. The growth areas for employment will be in labour intensive services and in knowledge based, hitech sectors, such as telecommunications, software and data processing. The inescapable fact is that workers today are more likely to face redundancy and the task of reintegration into the workforce than would have been the case a generation ago.
The interests of social justice dictate that older workers should not continue to suffer systematic disadvantage in the labour market as a result of the application of outmoded or discriminatory criteria for selection for employment or training. One important policy aim of the Bill is to change this type of behaviour in the interest of social justice as well as from a public policy perspective.
Age barriers to employment are EU wide. The European foundation for the improvement of living and working conditions has identified age barriers to employment in a number of EU member states. Some member states with population profiles older than our own have begun to rethink traditional policies that have tended to regard workers over 50, or even younger, as expendable. As a result, there is a growing recognition that older workers often represent highly skilled labour and valuable know-how. The research supports the view that these workers form a large pool of experienced, reliable and flexible employees.
Ireland is fortunate to have an educated and well motivated working population. Irish people have shown themselves to be innovative, hard working and determined to succeed in whatever enterprise they are engaged. Success in today's increasingly competitive international commercial arena involves making the fullest use of the talents of all employees, without regard to work irrelevant characteristics such as age, sex, disability, sexual orientation, religion or race. Enterprises that succeed in tapping the talents and skills of capable and flexible workers will inevitably succeed and have more talent at their disposal. Enterprises which ignore the skills of some workers because of a traditional world view and outdated concepts of human resource management and motivation may find themselves falling behind, resulting in the enterprise and its employees ultimately suffering the consequences.
Apart from the need for economic success, we must consider the consequences of marginalisation. Employment equality legislation is one important way in which we can help to redress disadvantage. I am aware that this Bill alone will not eliminate inequality or create a perfect society overnight. That task will require proactive measures over a longer period. However, this Bill is a key initiative in the development of a more equal society. It also lays down a marker for the future. Today we are addressing these issues in the realm of employment only, but I am committed to introducing a new Equal Status Bill later in the year which will address the question of equality of opportunity in a wider context.
I wish to outline the main features of the Bill. The Bill is divided into seven Parts. Part I contains standard and technical provisions; Part II sets out the prohibited discriminatory grounds and establishes the scope of the Bill; Part III deals with discrimination on grounds of gender and gives effect to EU law in this area; Part IV deals with discrimination on grounds other than gender, namely, marital status, family status, sexual orientation, religion, age, disability, race and membership of the traveller community; Part V provides for the establishment of the Equality Authority which will subsume the present Employment Equality Agency; Part VI provides for equality reviews and action plans and for a review of legislation by the Equality Authority and Part VII provides means of redress and compensation for persons who might have suffered discrimination.
Part I of the Bill — comprising sections 1 to 5 — provides for definitions — section 2; the powers to make orders and regulations — section 3; expenses — section 4; and the repeal of the Anti-Discrimination (Pay) Act, 1974, and the Employment Equality Act, 1977 — section 5. Section 2 contains the necessary definitions. Some definitions which should be noted are: "contract of employment" covers all employees in both the public and private sectors as well as workers employed through employment agencies; "disability" is broad enough to give protection from discrimination to all people with a disability and "family status" encompasses both elder care and child care responsibilities.
Part II comprises sections 6 to 17 of the Bill. Section 6 sets out the grounds on which discrimination is prohibited. They are gender, marital status, family status, sexual orientation, religion, age, disability, race and membership of the traveller community. The scope of the Bill is also established in this Part. Section 8 outlaws discrimination in relation to access to employment, conditions of employment, training or experience and promoting or regrading or classification of posts. Section 10 prohibits the publication or display of discriminatory job advertisements. Section 11 prohibits discrimination by employment agencies. Section 12 prohibits discrimination by providers of vocational training. Section 13 prohibits discrimination by trades unions, employer organisations, professional bodies, trade associations and by any body which controls entry to or the carrying on of a profession, vocation or occupation. The procurement or attempted procurement of discrimination is prohibited by section 14. The extent of the liability of an employer or other person for actions of employees and other agents is set out in section 15.
Other provisions in this Part are the definition of like work — section 7; the making null and void of provisions in collective agreements that are discriminatory — section 9; general exclusions from the provisions of the Bill where a person is unwilling, unsuitable or unable to perform the duties of the post — section 16 — and finally where acts are done in compliance with statutory requirements — section 17.
Part III, comprising sections 18 to 27, deals with discrimination on the gender ground and gives effect to EU law in this area. Sections 19 and 20 provide an entitlement to men and women to equal remuneration in respect of like work where both are employed by the same or an associated employer. Discrimination in relation to other conditions of employment are prohibited in sections 21 and 22 of the Bill. Section 23 contains a definition of sexual harassment and explicitly provides that sexual harassment amounts to discrimination.
Section 24 allows for positive action to eliminate the effects of past discrimination. It is a broadly couched provision and may be interpreted to include all forms of positive action, subject only to any limitation imposed by European Court of Justice case law.
Sections 25 to 27 allow exemptions from the principle of equal treatment. These exemptions include an exemption for the purposes of authenticity in entertainment; an exemption for certain jobs abroad; an exemption for special advantageous treatment of women in connection with pregnancy, maternity and adoption; and an exemption for personal services, such as the care of an elderly or incapacitated person. Finally, there are limited exemptions for the Garda Síochána and the prison service for purposes related to privacy and decency, the control of violent individuals and riot situations and for gender-based height requirements.
Part IV, consisting of sections 28 to 37, prohibits discrimination on any of the following grounds: marital status, family status, sexual orientation, religion, age, disability, race and membership of the traveller community. Sections 29 to 31 provide for equal pay for like work and for the prohibition of discrimination in relation to other conditions of employment. Section 32 outlaws harassment in employment on the basis of each of the discriminatory grounds set out in this Part. Section 33 allows positive action in favour of people with disabilities, people above the age of 50 and members of the traveller community.
Section 34 allows for the retention by employees of certain family and seniority related benefits that would otherwise be made unlawful under the Bill. It allows for the continued fixing of retirement ages and for the phasing out of age related pay. The section also permits the setting of a maximum recruitment age, on training related cost grounds and for an exemption from the terms of the Bill where there is clear actuarial or other evidence of significantly increased costs for the employer.
Section 35 is focused primarily to require an employer to make special provision for a person with a disability provided that such provision would not give rise to a cost, other than a nominal cost, to the employer. Section 36 allows for the continued application of residency, citizenship and Irish language proficiency requirements in the public service and establishes criteria for the setting of educational and other qualifications.
Section 37 allows exemptions from the principle of equal treatment. The exemptions include exemptions for religious, educational and medical institutions run by religious bodies; an exemption for the purposes of authenticity in entertainment; an exemption for jobs in circumstances abroad where people of a particular religion or race could not reasonably be expected to operate effectively; an exemption for employment in a private household; and an exemption for the security forces on the age and disability grounds.
Part V, consisting of sections 38 to 61, subsumes the Employment Equality Agency into the new Equality Authority which is established by section 38. Section 39 outlines the functions of the authority which include, inter alia, working towards the elimination of discrimination and promotion of equality of opportunity.
Sections 40 to 50 deal with the appointment of the chairperson, vice-chairperson and ordinary members of the board of the authority; the arrangements for meetings and business of the authority; the appointment of the chief executive officer and staff of the authority; and some standard general provisions for the operation of the authority.
Sections 51 to 53 deal with the accounts and audit of the authority, annual reports, and the grants and borrowing powers of the authority.
Section 54 empowers the authority, following appropriate consultation, to develop codes of practice for the elimination of discrimination and the promotion of equality of opportunities in employment. The new codes of practice will be admissible in evidence and taken into account in determining any relevant case.
Section 55 empowers the authority to engage in research and information activities. Sections 56 to 61 provide that the authority may conduct an inquiry into discrimination and related matters.
Part VI consisting of sections 62 to 67, gives a new statutory power to the authority to carry out equality reviews and devise action plans — sections 63 to 66 — and review equality legislation — section 67.
Part VII, consisting of sections 68 to 99, deals with procedures for resolving disputes in relation to entitlements under the Bill. In an effort to assist in the speedy and informal resolution of disputes, section 72 allows for binding mediation in certain circumstances.
Section 71 is one of the key provisions of this Part. It provides that a person who considers that she or he has been discriminated against, victimised or has not received equal remuneration may, in the first instance, refer the matter to the Director of Equality Investigations, with provision for an appeal to the Labour Court. In the case of a dismissal, the case would be referred directly to the Labour Court, with provision for an appeal to the Circuit Court — sections 71, 77 and 78. The other key provision is section 76 which allows the director of the court to order an employer to pay up to three years' arrears of remuneration or to order compensation for other acts of discrimination or victimisation up to a maximum of 104 weeks' remuneration. In a case where the person concerned was not in receipt of remuneration, there is provision for an order for compensation up to a maximum of £10,000. In a case involving the dismissal of an employee, the Labour Court may also order reinstatement or re-engagement of the employee, if that is considered appropriate.
Arising from recent European Court of Justice case law, I have provided means of redress without limit on the amount of compensation in gender equality cases. A person who may have been discriminated against on this ground may opt to seek redress through the Circuit Court. In such a case the only limit on the amount of compensation or arrears of remuneration which may be ordered is a six year time limit on the backdating of any compensation or arrears of remuneration — section 76(3). This limit on backdating is the maximum such limit enshrined in the generally applicable Statute of Limitations.
Sections 70 and 75 provide a right to seek information for all persons who may have been discriminated against and set out the consequences for an employer of failure to supply such information. Sections 88 to 91 give investigative powers to the Director of Equality Investigations and to the Labour Court to enter premises to obtain relevant information, through interview or otherwise, and to ensure the imposition of sanctions in the event of failure or refusal by persons to cooperate with an investigation.
Under section 79, the Equality Authority is empowered to refer disputes to the Director of Equality Investigations. The authority may also refer a case to the Director on behalf of an individual where it would not be reasonable to expect an individual to refer the case because, for example, of the complexity of the case or because of the individual's fear of victimisation.
Sections 80 and 81 empower the authority or a person affected by a collective agreement to refer the agreement to the Director or, on appeal, to the Labour Court where it is considered that the agreement contains a discriminatory term or does not provide for equal remuneration.
Sections 85 to 87 allow a person who has been awarded compensation under the Bill to enforce the award through the Circuit Court if the employer fails to make payment within a specified period.
Sections 92 to 94 deal with offences under the Bill and with certain incidental provisions. Sections 95 to 99 deal with supplementary issues such as obtaining compensation from one source only, empowering the Director of Equality Investigations to strike out cases which are not being pursued and redressing procedures for the Defence Forces.
This Bill is a core element in my Department's strategy to develop a framework for equality on a broad front. It is the first but nonetheless a necessary step in the process of the elimination of discrimination.
Senators can be assured that I will be appreciative, as always, of all constructive suggestions for improvements to the Bill which they may put forward. What is required is a law which works and which provides protection for those whom it is intended to protect.
