Amendments Nos. 20 to 26, inclusive, 28, 29, 38, 41, 42, 51, 54, 55 and 56 are related and may be discussed together.
SECTION 4.
I move amendment No. 20:
In page 8, to delete lines 36 to 38, and substitute the following:
"In proceedings under this Act it shall be presumed until the contrary is established that no undue difficulty exists in relation to any matter, and a determination as to whether the contrary has been so established shall be made having regard to all the relevant circumstances, including——".
Concerns have been expressed that the undue difficulty concept would be used to circumvent the provision of the Bill. This amendment proposes to establish a presumption that undue difficulty does not exist so that the onus would be on the party claiming undue difficulty to rebut that presumption. There is a similar concept in the Unfair Dismissals Act where all dismissals are presumed to be unfair and it is up to the employer to establish the contrary.
Is the Minister deleting paragraph (f)?
My amendments introduce the reasonable accommodation base, which was included in the Employment Equality Bill, with modifications. Under Deputy Keogh's amendment it is to be presumed, until the contrary is established, that no undue difficulty exists. There is no valid reason such a presumption should be made. It will be for the director of equality investigations to adjudicate on this matter. Respondents will probably make the case from time to time that undue difficulty exists, which is akin to the position I discussed earlier with Deputy McDaid, and the adjudication will be made by the director of equality investigations.
The reasonable accommodation approach to this issue, which I introduced in the Employment Equality Bill, has been recognised by the disability organisations as a major improvement. Consequently I am introducing it in this Bill through this series of amendments. I believe it is helpful.
Is the Minister deleting that paragraph in amendment No. 26? If it is included it will leave a vague, open ended opt out. One could plead that due to outside circumstances one had an opt out.
Paragraph (f) on page 9 is deleted by amendment No. 26.
It widened the scope for an opt out.
That is part of the reasonable accommodation approach we took on board in the Employment Equality Bill after consultation with interest groups representing people with disabilities and following discussions on how this operates in other countries. It is an improvement from the point of view of people with disabilities.
We have made headway on this matter. The Minister recognises the inherent difficulty in this part of the Bill.
The new base is an improvement on what we had before. It goes in the direction being sought by the Deputy, but it does not go all the way.
Amendment, by leave, withdrawn.
I move amendment No. 21:
In page 8, paragraph (a), line 39, to delete "arrangements" and substitute "treatment or facilities".
I am proposing a series of amendments to enhance the provisions by providing for reasonable accommodation on lines similar to those in the Employment Equality Bill, but with relevant modifications.
Reasonable accommodation and undue difficulty will be dealt with in this area of the Bill and I have tabled a number of consequential amendments to delete reference to undue difficulty in other sections. In section 4 dealing with undue difficulty, I propose to change "special arrangements" to "special treatment or facilities" to bring the terminology into line with the Employment Equality Bill. I have tabled an amendment in line with Deputy McDaid's amendment to delete paragraph (f) of section 4, which does not add to the rest of the section.
The reasonable accommodation provisions will be contained in a new section 5 and there will be a separate provision in section 9(2) on the application of reasonable accommodation in the case of registered clubs. The essence of section 5(1) is that service providers and so forth will be under a duty to do what is reasonably necessary to allow a person with a disability satisfactorily to avail himself or herself of any facility offered by the provider, unless what is reasonably necessary would give rise to undue difficulty as defined in section 4. The provision in section 9(2) on registered clubs will be on similar lines. In both cases these provisions are subject to subsection (2) of the proposed new section 5, which deals with the situation in which a person cannot fully comply with conditions that reasonably apply to persons without a disability in respect of the service in question. This disqualification is similar to subsection (4)(b) of the existing section 5. The main changes of the conditions referred to must be ones that, for example, reasonably apply to persons without a disability and so forth. In other words, it will not be open to service providers to specify unreasonable conditions.
I will return to aspects of these provisions before Report Stage because further consideration must be given to how the new section 5(2) relates to 5(1) and the new section 9(2)(b)(iv). One consequence of the new approach to reasonable accommodation and undue difficulty is that the existing section 5(2) dealing with an assisting person, animal and so forth is no longer necessary and I propose its deletion. This is inherent in the concept of reasonable accommodation.
With regard to amendment No. 51, which seeks to delete section 8(3), Deputies will note that the amendment covers paragraph (b) of the subsection which allowed firms to impose reasonable terms in relation to partners or members, where the person in question, by reason of disability or age, had a restricted capacity to participate in the firm or required special arrangements to enable him or her to do so. There is no reason to retain this paragraph. As far as disability is concerned, the general provisions on reasonable accommodation and undue difficulty cover the situation adequately. With regard to age and disability, such terms and conditions could not be discriminatory because they would relate to the capacity of the person to be a partner or member of the firm rather than to the disability or age per se.
Amendment agreed to.
I move amendment No. 22:
In page 8, paragraph (b), line 43, to delete "arrangements" and substitute "treatment or facilities".
Amendment agreed to.
I move amendment No. 23:
In page 9, paragraph (c), line 1, to delete "arrangements" and substitute "treatment or facilities".
Amendment agreed to.
I move amendment No. 24:
In page 9, paragraph (d), line 4, to delete "arrangements" and substitute "treatment or facilities".
Amendment agreed to.
I move amendment No. 25:
In page 9, paragraph (e), line 7, to delete "arrangements," and substitute "special treatment or facilities, and".
Amendment agreed to.
I move amendment No. 26:
In page 9, to delete lines 8 to 10.
Amendment agreed to.
Amendment No. 27 not moved.
Section 4, as amended, agreed to.
NEW SECTION.
I move amendment No. 28:
In page 9, before section 5, but in Part II, to insert the following new section:
"5.—(1) Subject to subsection (2), a refusal to do what is reasonably necessary (including by special treatment or the provision of special facilities) to allow a person with a disability satisfactorily to avail himself or herself of any right, privilege, status, property, facility or service the withholding, withdrawal or other act or omission in respect of which would amount to discrimination under section 5, 6, 7 or 8, shall itself be discrimination within the meaning of the relevant section, unless what is reasonably necessary would give rise to undue difficulty.
(2) A refusal—
(a) to provide any right, privilege, status, property, facility or service to a person with a disability, or
(b) to do so except subject to conditions or limitations,
does not, by that reason alone, constitute discrimination for the purposes of subsection (1) or evidence that a club, within the meaning of section 9, is a discriminating club where, because of the disability, the person cannot or cannot fully comply with conditions that reasonably apply to persons without a disability in respect of the right, privilege, status, property, facility or service.".
Amendment agreed to.