Select Committee on Social Affairs debate -
Tuesday, 26 Nov 1996

SECTION 40.

Dr. Woods

I move amendment No. 54:

In page 37, after line 46, to insert the following subsection:

"(4) Provided that—

(a) an employee or any person nominated by them to act on their behalf, shall be entitled to access to all information in the possession of, or power of procurement of, the employer relevant to the case being made by the employee,

(b) that where an employer refuses, fails or neglects to give such information as is provided for in paragraph (a), the employee's case shall be deemed to have been proved on a prima facie basis.”.

This section deals with the right of individuals to information. The amendment proposes to include a new subsection (4), the purpose of which is to ensure that an employee cannot be prevented from obtaining information that may be relevant to a claim.

The Irish Congress of Trade Unions was concerned about this matter, from practical experience. It recommends that the section be amended to give the employee or the person acting on his behalf, which may be a trade union, access to all information relevant to his case. The ICTU also recommends that, where employers refuse to provide such information, the burden of proof should be reversed. It is also of the opinion that section 43(3) should be amended to ensure that individuals cannot prevent claimants obtaining information relevant to their claims and that a provision be included in the legislation to ensure that said information be made available in forms that are appropriate to people with disabilities, namely, visual impairments or reading and writing difficulties. That is the basis of proposals made by the ICTU. However, the amendment tabled in my name proposes that individuals be provided with the information they require in connection with their claim. What are the Minister's views on that proposal?

Mr. Taylor

Section 40 was framed in the light of legal advice and after consultations with the social partners. In drafting the provision, I had regard to the fact that what is in question here is a preliminary right to information before the lodgement of a claim for redress with the Director of Equality Investigations or the Labour Court. Comprehensive powers of the kind envisaged in paragraph (a) of the amendment tabled by Deputy Woods are provided to the Director of Equality Investigations and the Labour Court after a claim has been lodged under sections 58 to 61 of the Bill.

I am interested to note that, in framing paragraph (b) of his amendment, Deputy Woods has proposed a shift in the burden of proof in circumstances where the employer has failed to meet his or her obligations under the section. There is a provision in section 45 which is not dissimilar to that proposed by the Deputy, although it would not represent quite as beneficial an arrangement for the employee as Deputy Woods would like to see introduced. In preparing the Bill I was advised that the provision in section 45 is the optimum shift in the evidential burden of proof that can be achieved legally in this kind of case.

Section 45 provides that, where an employer fails to meet his or her obligations with regard to the supply of information under section 40, the Director of the Labour Court or the Circuit Court, as the case may be, may draw inferences as seem appropriate from the failure to supply the information or from the supply of false or misleading information. Deputy Woods' amendment seeks formally to extend the right of information beyond the employee to another person nominated by her or him. In the Bill as drafted, the information seeking process will be initiated by means of a statutory form. An employee who has a right of information under section 40 may give the preparation of these forms over to a legal adviser, trade union or another person. However, it is fair and appropriate that the employee should sign the form before its submission to the employer. Accordingly, I regret that, despite its thorough and comprehensive nature, I cannot accept the amendment for the reasons outlined.

Dr. Woods

I thank the Minister for his detailed explanation and the information he has given and I will consider it further before Report Stage.

Amendment, by leave, withdrawn.

Section 40 agreed to

Sections 41, 42 and 43 agreed to.