Amendment No. 26 is consequential on amendment No. 32 and amendment No. 41 is related. The three amendments will be discussed together. Is that agreed? Agreed.
SECTION 23.
I move amendment No. 26:
In page 23, subsection (2), line 43, to delete ", subject to subsection (4),".
Deputies will see I am accepting their proposals on these matters. I am agreeing to delete subsection (4) of this section and a similar provision in section 32 (4). As a consequence, Deputy Woods's amendment to replace lines 16 and 17 on page 24 of the Bill will fall. In view of some of the comments on Second Stage and arising from representations from various interest groups, I have reviewed the need for a provision of this nature. I appreciate some of the concerns raised about the possible implications of such an explicit provision and I am satisfied to go along with the wishes of the Deputies on this matter.
The Government amendment providing for the deletion of subsection (4) involves a consequential deletion in subsection (2) where there is a reference to subsection (4) being deleted. In the circumstances it is appropriate to delete this reference too. On balance, I am satisfied that it will be beneficial to the Bill.
I am happy with the amendment. It is important to deal with this issue because it has caused a great deal of concern. I thank the Minister for taking this approach. A number of people, including ICTU, were concerned about the wording of the section and its operation in practice. This is a wise step.
Amendment agreed to.
Amendments Nos. 29, 31 and 33 are related to amendment No. 27. Amendment No. 28 is an alternative to amendment No. 27 and amendment No. 30 is an alternative to amendment No. 29. Amendments Nos. 27 to 31, inclusive, and amendment No. 33 will be discussed together. Is that agreed? Agreed.
I move amendment No. 27:
In page 23, subsection (2) (a), lines 44 to 46, to delete ", other than an act which no reasonable person could consider to be sexually offensive, humiliating or intimidating to A".
There is a great deal of difficulty about the phrase "no reasonable person could consider to be sexually offensive, humiliating or intimidating to A". This moves away from what is recognised as best practice and is a step backwards in the area of sexual harassment. It is a new test of reasonability —". . . no reasonable person could consider. . . ". There is a fear that it will make life more difficult in the context of dealing with the problem of sexual harassment in the workplace. It is feared that people will be less willing to come forward. A considerable amount of work has been done in this area. What is the test to be? Will the Minister tease out this question? There is a fear that the legislation will be less effective because of this provision and I am not convinced that this phrase should be included.
Amendment No. 28 seeks to delete the words "other than an Act which no reasonable person could consider to be" and substitute "which is". The fear is that this provision moves away from the codes of practice which operate at present and that, in effect, the Government is changing the definition in a way which removes the concept of the impact on the complainant in cases of sexual harassment. It is feared that this is an attempt to establish objective criteria. Although that is understandable in other circumstances, in this situation it is particularly important that we maintain the concept of the impact the harassment has on the complainant, which the victim finds to be humiliating, offensive or intimidating. There is a fear that if the perpetrator has reason to believe the victim would not find the act or conduct sexually offensive, humiliating or intimidating then no sexual harassment will be deemed to have occurred.
That is subsection (4) which we are agreeing to delete.
Amendment No. 28 refers to deleting "other than an act which no reasonable person could consider to be". The issue is how reasonable the act is.
That is the nub of the issue. I propose to deal with the amendments by Deputy Keogh and Deputy Woods to section 23(2) (a) and (c) together. Deputies will not be surprised to learn that section 23 has proved to be one of the more difficult measures to draft into the Bill. There has been a progressive interpretation of the Employment Equality Act, 1977, by the Labour Court which takes the view that freedom from sexual harassment is a condition of work that an employee of either sex is entitled to expect. Denial of that freedom is considered to be discrimination under the Act. However, one sexual harassment case was appealed to the High Court on a point of law. Unfortunately, the liability of the employer for acts of sexual harassment in certain circumstances was put in doubt by that case. I am seeking here to make explicit provision that will provide legal certainty on this important issue.
Obviously, when this provision was being drafted it was beneficial to have access to important source documents on sexual harassment such as the 1992 EU Council recommendation on the subject and my Department's code of practice on measures to protect the dignity of women and men at work.
Many representations were made to me to incorporate the definitions of sexual harassment of those documents in the Bill. I must have regard, however, to the distinction between guidelines for best practice laid down in these documents and the legal requirements of text in primary legislation. This highlights the dilemma faced in making explicit provision in legislation for this most sensitive of issues.
Much of what arises in sexual harassment relates to subjective experience of the individual who complains of harassment. At the same time, in seeking to apportion liability for such actions Statute law cannot easily avoid the use of an objective test. In this case a reasonable person test has been incorporated into the provision. This is a legal way of providing for an assessment of the offensive, humiliating and intimidating nature of any act from the perspective of a neutral observer. Fears have been expressed that this approach will lead to a weakening of protection against sexual harassment in law in that it may be argued that reasonable persons in the employment context of the complainant do not consider the actions complained of to be offensive, humiliating or intimidating. I reassure Deputies that such a development is not envisaged under this section.
First, the arbitration of what is reasonable will be for the director of equality investigation, the Labour Court or the Circuit Court. The Labour Court has already adopted a progressive approach on this matter under the 1977 Act and there is no requirement for it to interpret this explicit provision in a less protective way. In other words, it is not to be expected that the court or the director will, on foot of this provision in the Bill, apply a less reasonable approach to harassment than to date. Furthermore, the special provisions at section 69(4) enable approved codes of practice to be admitted in evidence in proceedings under the Bill. Indeed, this subsection requires that where it appears that the content of such a code is relevant to any question arising in any proceedings, the provisions concerned must be taken into account.
Given that a code of practice has already been adopted in this area, I expect that approval for a code under the Bill on this subject should be in place soon after the Bill as enacted is brought into operation. This will reinforce the protective approach currently applied in respect of sexual harassment. It will ensure that good practice which is profiled in the code will inform the director and the Labour Court in determining cases of sexual harassment which come before them. It will also enable due account to be taken of the subjective aspects of acts of this nature. In all the circumstances, I propose that paragraphs (a) and (c) of subsection (2) should be retained as drafted. Accordingly, I request the withdrawal of the amendments proposed by Deputies Keogh and Woods on this issue.
I have examined the proposal in connection with paragraph (d) — an additional paragraph in this subsection. In drawing up this provision I sought to catch a wide range of activities as constituting sexual harassment. In particular, in paragraph (c) I provided that any other act or conduct not already mentioned at (a) and (b) which would meet the reasonable test of what is sexually offensive, humiliating or intimidating will be encompassed in the Bill. Deputy Keogh's amendment focuses on exclusively subjective considerations and may not be appropriate as a provision of primary legislation. In the circumstances, I do not favour inclusion of such a provision.
I appreciate that the Minister has gone some way towards alleviating my concerns and I acknowledge that but I am still concerned. While the Minister has told us that this section was a difficult one to draft, I would like to consider his comments on amendment No. 31. I will withdraw the amendments but I am concerned about the whole section. As the Minister rightly says, there are concerns that we will take a step backwards, although he said this is not the intention and will not be the result. I will reflect on what he has said about this section and will come back to it on Report Stage.
I appreciate the Minister's point that it is difficult to find a balance between guidelines and legalities. While guidelines may work well in practice, when one tries to convert them into primary legislation it creates special difficulties. The concept of the reasonable person is well established in law and, consequently, the Minister has gone for that as the basis. Our main concern is that it is possible to have codes of practice which will protect the victim and hence the tendency towards a subjective approach to the problem. When one thinks of crime one thinks of victims. If one looked at it, as other societies do, from the victim's position we would have a different legal system. One might then be less concerned with the reasonable person and more concerned with what happened to the victim as well as his or her rights and entitlements. Nevertheless, as our system operates, the whole concept of a reasonable person is well established. I agree with Deputy Keogh that this should be considered further on Report Stage. I accept the Minister's amendment.
Thank you. I think that is the nub of it. It is difficult to see how one could operate this on a subjective test in primary legislation because that would mean a person would simply say they saw it as sexual harassment and that would be the end of the case. It might be something totally insignificant — a touch on the shoulder for example — so one could not possibly administer the system on that basis. One should bear in mind that when one talks about a reasonable person it is not a question of someone coming into the witness box and saying "I am a reasonable person and I say it would be this. . .". It is a reasonable person as interpreted by the officer and by the Labour Court. It is really quite impossible to see how primary legislation could operate on any other basis. Codes of practice are a different matter. We will have a code of practice in place as quickly as possible.
I did not have an opportunity to speak on amendment No. 33. Is it being discussed with the other amendments? It provides a type of escape clause for people who might find themselves in an embarrassing or difficult position and involves substituting the phrase "A had expressly solicited, encouraged or condoned the act or conduct claimed to be".
I apologise for interrupting, but that amendment refers to subsection (4) which I have agreed to delete.
That is satisfactory.
Amendment, by leave, withdrawn.
Amendments Nos. 28 to 31, inclusive, not moved
I move amendment No. 32:
In page 24, lines 14 to 17, to delete subsection (4).
Amendment agreed to.
Amendment No. 33 not moved.
I move amendment No. 34:
In page 24, between lines 36 and 37, to insert the following subsection:
"(8) At every place where 10 or more people are employed, the employer shall have a duty to introduce, publish and effectively communicate to all persons employed and all customers, clients or business contacts of the employer, a Code of Practice or Conduct in relation to sexual harassment to be observed at that place or any other place where the employer carries on business, within six months of the commencement of this section.".
The purpose of this amendment is to ensure that the code of practice or conduct which applies in a place of employment is published and made known to people who work there and to those who carry out business with the company involved. It is designed to ensure that sexual harassment will not be tolerated. In that context, the code of practice or conduct will leave no doubt about the standards which apply in places of employment.
I acknowledge the constructive nature of the proposed amendment. I have given careful consideration to the proposal and, while I sympathise with the objective involved, I have doubts about the practicality of the measure. For example, I suspect it could be extremely difficult for an employer to communicate a code of practice on sexual harassment to all customers, clients and business contacts. One can imagine the difficulties involved for a major retail store in the city centre. How would the management of such a store meet a statutory obligation to inform customers of its sexual harassment policy?
In addition, the amendment does not state the code of practice to be communicated. If it is not an improved code of practice, or derived from an approved code, it could have undesirable deficiencies. Over and above this, the question arises as to how such a proposal would be policed. Having given the matter due consideration, I suggest that the existing provisions in the Bill already provide considerable scope for promoting best practice in Irish employment. Given the admissibility of approved codes of practice at proceedings under the Bill and the requirement that their contents must be taken into account, there is already a strong incentive for employers to adopt and promulgate a policy to tackle sexual harassment.
I tabled this amendment to highlight the issue and make it clear that there should be a code of practice in places of employment and that sexual harassment will not be tolerated. The Minister stated he would be happy to see best practice encouraged. However, there must be a simple way to ensure that the provisions of the legislation will be made available in practice. This might take the form of a notice to state that the code applies. I understand the difficulties involved for the large stores to which the Minister referred, but such stores display signs which prohibit smoking, etc. Apparently codes of practice, which have proven effective, are being implemented and publicised within some of the larger employment concerns. The amendment is really aimed at discovering whether the practice can be changed and people can be made aware of the existence of the legislation and the codes of practice. However, I accept the Minister's statement that there are difficulties involved.
I will consult the Employment Equality Agency to see what suggestions it might have about this matter. It has been very helpful in the past and was instrumental in preparing a code of practice.
That might be a more suitable approach.
Amendment, by leave, withdrawn.
Section 23, as amended, agreed to.