Skip to main content
Normal View

Select Committee on Social Affairs debate -
Wednesday, 19 Mar 1997

SECTION 12.

I move amendment No. 62:

In page 16, subsection (1), line 27, after "harass" where it firstly occurs to insert ", and/or procures or incites sexual harassment or harassment,".

Will the inclusion of the words "and/or procures or incites sexual harassment or harassment" prohibit somebody within the workplace asking somebody else to engage in sexual harassment? Is it discriminatory to ask somebody in the workplace to engage in harassment?

I propose that Deputy Seán Kenny take the Chair. Is that agreed? Agreed.

Deputy Seán Kenny assumed the Chair.

Procurement of sexual harassment or harassment is prohibited under section 14 and may be referred to the director under section 22. Amendment 62 makes procurement of sexual or other harassment an offence. Procurement is, therefore, amply dealt with under the provisions of the Bill and there is no need to include it in section 12. The proposed amendment would also prohibit incitement to sexual harassment or other harassment.

While I appreciate the Deputy's motives in proposing this amendment, I am not disposed to accept it. The Bill already deals, as does the companion Employment Equality Bill, with discrimination, both direct and indirect, sexual and other harassment and procurement of discrimination or harassment. I do not consider that an expansion of this already broad ranging Bill to cover yet another type of activity is warranted at this time. However, I am considering this section in general with a view to a possible Report Stage change.

Could somebody in the workplace, for example a senior manager, order a junior to incite somebody to sexual harassment? Is this covered under the Bill?

Section 14 covers that. It state: "A person shall not procure or attempt to procure another person to engage in prohibited conduct".

Does that include cases based on seniority?

Amendment, by leave, withdrawn.

I move amendment No. 63:

In page 16, subsection (1), lines 28 and 29, to delete "where the victim" and substitute "including a victim who".

The Bill appears to suggest that harassment and sexual harassment are only prohibited in certain circumstances. This amendment retains such circumstances but also make is clear that harassment in other circumstances is prohibited.

The sexual and other harassment provisions of this Bill apply to areas generally corresponding to those in which discrimination is prohibited. The prohibition on sexual and other harassment in the Employment Equality Bill is similarly confined to the context of employment.

Deputy Keogh's amendment would have the effect of bringing all sexual and other harassment, irrespective of the area in which it takes place, within the scope of the Bill. This would be outside the scope of the Bill as provided for in the Long Title. It would duplicate the Employment Equality Bill and would be very difficult to enforce since it would cover sexual and other harassment in all spheres, public and private. I regret that I cannot accept this amendment. However, I propose to reconsider the provisions of subsection (1) and see whether an amendment is desirable on Report Stage to achieve a more exact correspondence between it and sections 5 to 9 of the Bill. I will also be looking at the provisions of section 12 in general.

Amendment, by leave, withdrawn.

Amendments Nos. 64 and 65 are related and both may be taken together.

I move amendment No. 64:

In page 17, subsection (2), line 1, after "A person" to insert "(‘the responsible person')".

These amendments are intended to provide a defence of the person responsible under section 12 (2). I am including this defence because, without it, the provisions of section 12(2) would be unduly onerous. The defence provided is similar to that in section 32(4) of the Employment Equality Bill, albeit with a somewhat different wording. It gives the person responsible the defence if he or she proves that he or she took such steps as are reasonably practicable to prevent the sexual harassment or harassment.

It will be noted that the defence is one of prevention and that remedial action does not constitute a defence. The person responsible is, however, only required to take such steps as are reasonably practicable to prevent the harassment or sexual harassment. He or she is not expected to do more than this. Deputies will also note that the preventative measures do not have to be specifically directed at the other person concerned. Prevention of discrimination against a class of persons to which that other person belongs also provides a defence.

When reconsidering this section, does the Minister anticipate that there will be a change to this amendment on Report Stage?

No. It is a reasonable provision on a par with what is included in the Employment Equality Bill.

Amendment agreed to.

I move amendment No. 65:

In page 17, between lines 6 and 7, to insert the following subsection:

"(3) It shall be a defence for the responsible person under subsection (2) to prove that he or she took such steps as are reasonably practicable to prevent the sexual harassment or harassment, as the case may be, of the other person referred to in that subsection or of a class of persons of which that other person is a member.".

Amendment agreed to.

Amendments Nos. 66 to 70, inclusive, are related and may be taken together. If amendment No. 66 is agreed to, amendments Nos. 67 to 70, inclusive, cannot be moved.

I move amendment No. 66:

In page 17, lines 7 to 39, to delete subsections (3), (4), and (5) and substitute the following:

"(3) Sexual harassment takes place where a person—

(a) subjects another person (‘the victim' to an act of physical intimacy,

(b) makes a request of the victim for sexual favours, or

(c) subjects the victim to any act or conduct with sexual connotations, including spoken words, gestures or production, display or circulation of written words, pictures or other material,

where the act, request or conduct is unwelcome to the victim and could reasonably be regarded as offensive, humiliating or intimidating to the victim, or where it could reasonably be anticipated that the victim would be treated differently by reason of his or her rejection of or submission to, as the case may be, the act, request or conduct.

(4) Harassment takes place where a person subjects another person (‘the victim') to any unwelcome act, request or conduct, including spoken words, gestures or production, display or circulation of written words, pictures or other material, which in respect of the victim is based on any discriminatory grounds and which could reasonably be regarded as offensive, humiliating or intimidating to the victim.".

The purpose of these amendments is to simplify the definitions of sexual and other harassment and to bring them into alignment with the Employment Equality Bill as amended in the Seanad. While the wording proposed is not identical to that Bill, the substance is the same. Differences of wording in the two Bills reflect, in part, different drafting styles and the differing overall structures of the two Bills.

The test of what constitutes sexual harassment has been streamlined and instead of the complex inter-related tests provided in the existing subsections (3) and (4), this test will be as set out in the new section 12(3). This is consistent with the Employment Equality Bill as amended. The wording of the subsection which deals with other forms of harassment is also consistent with the Employment Equality Bill. Deputies will note that instead of the reference to "reasonable person", which prompted amendments from Deputies Keogh, McDaid and Flood, the proposed text will contain "could reasonably be regarded", as is now the case in the Employment Equality Bill. The new wording meets the concerns of the Deputies and I do not intend to accept the amendments.

The Seanad succeeded to a certain extent where I failed regarding the Employment Equality Bill. The Minister has moved a good way on the issue of sexual harassment. I was most unhappy with the Employment Equality Bill before it went to the Seanad. There should not be an objective test in relation to putting the onus on the victim to demonstrate what a reasonable person would have thought. I am not convinced the Bill goes as far as I wish but I recognise it takes the issues on board to a certain extent.

The Deputy is being cautious.

What type of amendment does the Minister intend to introduce on Report Stage? Is he in a position to indicate the issues it will cover?

I cannot definitely say that I will introduce an amendment on Report Stage. However, I am keeping the section under review. It will be re-examined and if an amendment is introduced, the Deputy will have an opportunity to discuss it.

Amendment agreed to.
Amendments Nos. 67 to 70, inclusive, not moved.
Section 12, as amended, agreed to.
SECTION 13.

Amendments Nos. 71, 101, 102, 103 and 105 are related and may be discussed together. Is that agreed? Agreed.

I move amendment No. 71:

In page 17, subsection (2), lines 47 and 48, to delete "and liable on summary conviction to a fine not exceeding £1,500".

These amendments are essentially of a house-keeping nature. Rather than having a number of sections dealing with penalties for offences under the Bill, the new section, which I propose to insert in page 34, will set down the penalties applicable to all offences under the Bill. Any discrepancies between the penalties for different offences have been eliminated and there is now a uniform approach without the need for repetition. This is an improvement.

Amendment agreed to.
Section 13, as amended, agreed to.
NEW SECTION.

Amendments No. 72 and 73 are related and may be discussed together. Is that agreed? Agreed.

I move amendment No. 72:

In page 18, before section 14, to insert the following new section:

"14.—A person who procures or attempts to procure another person to engage in prohibited conduct shall be guilty of an offence under this section.".

Under the Employment Equality Bill, procurement is a criminal offence. In the Bill as originally drafted it would be prohibited conduct. The Minister recognises this point.

Amendment, by leave, withdrawn.
Top
Share