Employment Equality Bill, l997 [ Seanad ]: Second Stage (Resumed).

Question again proposed: "That the Bill be now read a Second Time."

Ms Fitzgerald

I welcome this wide-ranging legislation which provides protection to many people who have suffered years of discrimination. Much of the discrimination has been experienced at a personal level, has caused great suffering and has had enormous consequences for those involved personally, financially and socially. It is important that our law sets out clear standards and sends direct messages about our attitude to discrimination. However, enshrining legislation in law is only a first step. It is important that we have the necessary resources to ensure this legislation becomes reality.

This legislation is also about changing attitudes. If we are to ensure that we have a society in which people can reach their full potential, irrespective of sex, marital status, family status, sexual orientation, religion, age, disability, race or membership of the travelling community, much more work has to be done.

This Bill is a step in the right direction but it must be publicised and fully explained. I notice that in its submission the free legal advice centre in Coolock referred to the complexity of the language and the need to move to more simple language in our legislation generally. In the absence of that, we must embark on a good public information campaign and I ask the Minister to respond to that suggestion. The provisions of the Bill should be widely publicised and the necessary resources must be given to groups which can best run that public information campaign.

Likewise, an expanded equality authority will be unable to do its job without a serious assessment of the necessary resources. I am speaking of both additional staff and an additional budget. If we are to be vigorous in promoting the objectives of the Bill, we must examine the issue of resources which has been a problem in this area. We are coming from a rather low base in trying to provide funding to tackle equality issues. Sometimes we think fairly small increases stretch further than they do, and it is easy to underestimate what is needed.

This Bill also looks at issues of racism. One could not address this Bill without expressing unease about the numbers of asylum seekers awaiting interviews. We have 5,000 people who have been waiting a long time — hardly any interviews have been held since December. If we want to ensure these people are not subject to discrimination and attack, as they have been, the very least we can do is deal speedily with their unique situation when they come into this country. We need an information campaign. The lack of a proactive approach by the Government in highlighting the needs of asylum seekers has been striking. When we think about how Irish emigrants were welcomed in other countries over the years, we need to pay something back. Of the world's 15 million refugees Europe receives only about 5 per cent compared to 90 per cent hosted by developing countries. Sometimes we see this problem totally out of perspective, and we have recently seen a series of very racist headlines.

One of the key issues is the level of protection from discrimination for those who are disabled. The Minister is obviously trying to walk a line between staying within what the Supreme Court judgment says and protecting the disabled. There is need for a higher level of protection than that provided for in the Bill. I hope that before the end of the debate the Minister of State will have got the legal advice that will enable her to go further with this provision. There is no need to wait for a disabilities Bill. We could be a little bit more courageous in this one. The protection is too restricted — there is less protection for the disabled here than for the other eight categories and we should try to remedy that now. I am interested to hear what the Minister has to say about this.

Huge numbers of people with disabilities are capable of working as effectively as non-disabled people but require small infrastructural adjustments such as ramps and special computer equipment. It could easily be argued that the cost of implementation is more than nominal. If we accept the Bill as currently drafted we are talking about nominal or token protection, and that is not enough. The Minister has submissions from a very wide variety of groups, from the Irish Council for People with Disabilities and many others. It is stated that the Bill could establish a hierarchy of people with various disabilities and that the replacement of reasonable accommodation at nominal cost could prove to be an open licence for employers to discriminate against people with disability, and there is a scandalous level of unemployment among people with disabilities.

The Bill does not define "nominal cost". It is a concept that is very vague and potentially very limiting. It is quite worrying that we have not addressed it in more detail. At what threshold, for example, does a cost become other than nominal? Employers should not be allowed the benefit of the let-out unless they first ascertain what is reasonably available from the State. The nominal cost could be computed taking into account what is available from the State on the facts of any given case. There are some worries about section 35 in relation to subsidy from the State. Perhaps the Minister would look at that too.

This Bill includes people with disabilities in equality legislation for the first time, and that is welcome. However, we should not sell them short. It is necessary for the Minister of State to obtain legal advice to see if she can go further than she has while taking account of the Supreme Court judgment. We are out of step with best international practice, and there is no reason we should be so. I hope the Minister will introduce an amendment on this before the Bill is passed.

Section 19 provides for equal pay. However, the whole question of access to work is still problematic for many women, given our live register requirements. This is an issue that must be addressed in the context of equal pay. Women still tend to predominate in certain sectors, often less well paid and without proper opportunities for training or upward progression. Women are concentrated mainly in three sectors, services, clerical and a narrow range of professions. Women also predominate in low paid areas and as atypical employees. We have to talk about women not as a whole group but in the context of issues relevant to different sectors. The question of child care, which I have already addressed, has to be taken on board if equal pay is to become a reality. We really must wake up to providing high quality, accessible and affordable child care. This must be seen as a positive enhancement in the lives of children and parents and not as an optional extra. Parental leave must be introduced, and flexibility in the workplace for carers of children and the elderly.

This Bill also deals with sexual harassment. There is some very disturbing research which the Employment Equality Agency has done in relation to sexual harassment. Recent research showed, for example, that 18 per cent of women and 2 per cent of men in a large unionised organisation had experienced sexual harassment during their career, 60 per cent of which had occurred in the previous 18 months. A staggering 79 per cent of people who witness the harassment choose not to get involved. We all know that from our own experience. It is clear that physical harassment is not now tolerated by employees, with rare exceptions, but it is clear that supports are lacking to help people raise grievances concerning the more subtle forms of harassment, and I welcome the definition in section 23. An information programme is necessary on this question because, as the research I have quoted clearly illustrates, there is a problem in relation to this issue in the workplace. Section 23 does not deal with same sex harassment. This is something the Minister should look at. There is no reason whatsoever to exclude this from the definitions in the Bill.

Another disturbing issue is that there is an increasing number of calls to the Employment Equality Agency concerning the failure to accommodate pregnancy at work. This is very worrying and points to the fact that we have to work incredibly hard on attitudes. I have heard from a number of women recently of subtle and not so subtle forms of discrimination against them if they are pregnant. It shows that old attitudes die hard and that we need to be vigilant. If we are serious about combining work and family life, if we are serious about gender equity, this is a very big issue. One would have hoped attitudes had gone beyond this but sadly they have not. However, I welcome the huge efforts being made by many employers and social partners to deal with the question of harassment and promote gender equality in a variety of ways. Much can be learned from the gender experience by those other groups who are now covered under this Bill and protected from discrimination.

What we are discussing here is intimately linked with equal opportunities in education. Obviously we need an ongoing programme in equal opportunities in education. The more one examines this Bill, the more one recognises that it requires actions by a very wide range of Departments and by a wide range of social partners for it to be effective.

I welcome the support for positive action under sections 39 and 63. This positive approach, as outlined in the equality review and action plan section, is excellent. It is the way forward. I hope it means that many businesses will be supported and encouraged in carrying out equality reviews. It is in very sharp contrast to section 88. I would like some more information on that section. It allows for research and inspection. I do not think this is the way we really want to go in terms of equality legislation, but perhaps there is some reason this is included. This seems to be very strong legislation. I do not know whether it is a separate new power we are taking on, but I would like to hear from the Minister before Committee Stage what exactly is envisaged here and why it is felt necessary to put in such strong powers.

I also note the special provisions for the Defence Forces in a number of sections. I question the exclusion of the Defence Forces from the mechanisms which other people can use. Obviously the Defence Forces are changing dramatically and the question of the individual human rights of members of the Defence Forces is something we ought to consider rather than going for blanket exclusions. Why not give rights of redress to members of the Defence Forces? There are also some exclusions in relation to the Defence Forces which I do not think necessary.

I know the intent of section 16(4) is to provide protection for children. However, I suggest that if one wishes to screen out unsafe staff, a range of good work practices in the workplace must be developed. Some rewording of the section may be necessary to ensure it does not unfairly lead to discrimination against individuals. This is obviously a very delicate area as it is necessary to be careful in screening out unsuitable staff. References must be obtained and good practices must be in place. The phrase "reliable information" is too broad and could lead to unjustified discrimination. Some minor changes in wording would give the protection sought for children in the employment of staff while, at the same time, not being unduly discriminatory towards certain people. This area must be examined.

There was a great deal of discussion about section 37(1) before the Bill was referred to the Supreme Court. It is obviously not a complete and total code on dismissals. There are worries that it could be used inappropriately and unreasonably to discriminate against teachers. It could be unfairly and arbitrarily decided that their behaviour is against the ethos of the institution. It could also be argued that this section builds in a procedure whereby unfair recruitment can be challenged. I am uncertain in my attitude to it as currently framed. One question I would raise is whether sexual orientation can be used as a ground not to employ someone under this section. I am unclear on that and I would like it clarified, if possible.

Section 37(6) defines disability and impairment very widely; it is very inclusive and wide-ranging. It is very wide-ranging in terms of the number of persons employed who would be excluded under the provisions. The exclusion may be disproportionate to the intended aims of treating people equally without regard to the various grounds of difference. Section 37 states that persons can be excluded from employment in a service on the grounds of slight disability or perceptible impairments. I do not believe those would interfere with their capacity to carry out a job. That section could be changed slightly and would be less discriminatory for that.

The form of redress outlined in the Bill is a very complex mechanism. Depending on the grounds upon which a case is taken, whether they are general grounds, dismissal, gender or discrimination by the Civil Service, different fora must be appealed to. It is necessary to go to the director of equality investigations, the Labour Court, the Circuit Court or a number of others. It is very complex and I am unsure how easy it is to solve this issue, but I ask that it be addressed. The issue of legal aid being unavailable in employment cases needs consideration. We assume the unions and the Employment Equality Agency will tackle this but perhaps we ought to extend legal aid to cover these cases.

This is welcome legislation. It is timely as we enter the new millennium that we enshrine in legislation protection to ensure people are not discriminated against. However, it does need back-up resources and information campaigns to ensure the provisions are widely known and implemented.

Ms O'Sullivan

I welcome the fact that the Bill has been reintroduced in the Oireachtas without undue delay following the Supreme Court judgment which found parts of it to be unconstitutional. However, I am not convinced the best possible wording has been used in the Bill to safeguard the rights of people with disabilities and to allow them be accommodated in the workplace. We are certainly constrained by the judgment of the court, but it was unnecessary to water down the original version to this extent. I commend the work done in the Seanad on the Bill. I know a considerable amount of time was spent discussing it, especially on Committee Stage. I also know my colleague, Senator O'Meara, put in a great deal of work in that regard and I commend the Seanad for the work it did. However, there is still much room for improvement in the Bill, especially in relation to the rights of people with disabilities.

Employment equality and equal status legislation are cornerstones of an inclusive society. I have no doubt that the establishment of the Department of Equality and Law Reform by the previous Government was critical in the formulation of these Bills. I pay tribute to the former Minister, Mervyn Taylor, who is now in retirement and enjoying it very much, for the commitment with which he pioneered legislation designed to reinforce human rights and tolerance in society. That Department has been subsumed into the Department of Justice, Equality and Law Reform, but we will be watching to ensure these aspects of the Department are not sidelined and will continue to be given priority in this House. It is also significant that the Good Friday Agreement for Northern Ireland contains a specific commitment to introduce employment equality and equal status legislation in the Republic parallel to a series of human rights commitments north of the Border. This is an indication of how central such legislation is to a fair and inclusive society.

I find it disturbing that a Bill designed to improve the position of minorities in the employment market should be found to clash with the Constitution. Serious consideration should be given to changing the Constitution if we can find no better safeguard than the wording in the Bill. The Minister's interpretation of the protection of private property afforded by the Constitution means that only nominal costs can be put upon the employer to facilitate a disabled worker. I do not believe the Minister is so constrained by the Constitution as to be obliged to use such a mealy-mouthed adjective as "nominal". The Irish Council for People with Disabilities has proposed a more forthright wording to which I hope the Minister will give consideration as the Bill progresses through Committee and Report Stages.

I looked up the definition of "nominal" in the dictionary and found a variety of definitions. It can mean "token", "small", "minimal in comparison with real worth or what is expected" or "in name only". In effect, employers are not required to take even pence from their profits to facilitate a disabled worker. That is not good enough, especially in an economy where, despite prosperity, it is estimated that as much as 80 per cent of people with a disability are unemployed. If this is the best wording which can be produced, then the balance between social justice and the constitutional property rights is totally skewed on the side of property. If the Minister is really that constrained, we should acknowledge that the Constitution is not an adequate framework on which to construct the kind of society we want for the 21st century and we should propose to the people of Ireland that it be amended.

In that regard, the proposals from the Constitution Review Group should also be heeded. It has made proposals in this regard as well. Our Government was to the forefront in negotiating non-discriminatory clauses in the Amsterdam Treaty which will be given great consideration soon. If the wording cannot be improved, we should seriously consider changing the Constitution or at least putting proposed changes to it to the people of Ireland. I look forward to further Stages and hope there will be a possibility of improving the wording in relation to the rights of people with disabilities.

Other aspects of the Bill are not adequate as regards people with disabilities. I cite section 35 in particular which needs to be linked to the equal pay sections of the Bill to ensure there are no loopholes with regard to a disabled person's right to having equal pay for equal work. The equal pay section is linked to sections covering other people but not specifically to section 35 which deals largely with people with disabilities. I ask the Minister to examine that on Committee Stage.

It was suggested by the National Economic and Social Forum that the State should bear the cost of adaptations in the workplace. However, there is already a workplace adaptation grant available to employers with a maximum level of £5,000. Experience in the US, where there is enlightened employment legislation concerning people with disabilities, shows that, in many cases, no cost is incurred by the employer. In 70 per cent of cases, the cost was less than $500 and was over $5,000 in less than 5 per cent of cases. This indicates that the grant already available to employers could cover the cost incurred in employing people with disabilities. Many new employers in our economy are American multinationals who would obviously be very familiar with the operations of disability legislation in the US. They should not have any great problems, therefore, with stringent and enlightened legislation in this area.

The legislation should be amended to take account of the workplace adaptation grant and other grants available to employers. I agree with the view of the National Economic and Social Forum that a portion of the employment levy could be assigned to top up the funds already available for such grants. When a workplace is adapted to suit a woman or a disabled worker, it inevitably facilitates other women or disabled workers. While the changes may be made to suit only one person, they will inevitably assist others, including the public who may enter the building for business reasons and so on. This building was adapted to suit Brian Crowley's needs when he became a Senator, but the changes subsequently benefited members of the public. There are many examples of adaptations which have had a broader and wider effect than the purposes for which they were originally intended.

The grossly high level of unemployment among people with a disability — approximately 18 per cent — needs to be addressed in a holistic manner. The provision of personal assistants could be the most effective enabler for many people. The argument made by the National Training and Development Institute that vocational training for people with disabilities should be transferred from the Department of Health and Science to the Department of Enterprise, Trade and Employment should receive a positive response. This would be a positive change of mindset and identify people with disabilities as a resource rather than a cost to the economy. The groups that represent people with disabilities feel strongly that they should be seen as a positive resource to the community. If that mindset is changed, other changes will follow. The phrase "parity of esteem" is often used in relation to Northern Ireland. We should give all out citizens the same level of esteem. The Bill refers specifically to vocational training.

The nine grounds on which discrimination is outlawed in the legislation are comprehensive and proactive in promoting tolerance and respect for diversity. There is disturbing evidence that the potential for racist sentiment is not far below the surface. Most citizens empathise with the stranger in a strange land, but there is evidence of a selfishness that does not want to share. The Bill will help to combat racism. In the recent past there has been a steady stream of immigrants into the country. These people fall into many categories, including students, fellow EU citizens, asylum seekers and non-EU citizens who have qualified for work permits. In some instances society has not reacted well to this immigration and one can easily detect the emergence of sentiments that have fuelled the growth of the National Front in France and other far right groups across Europe.

I sincerely hope the legislation will become one of the State's most effective tools in combating this nascent racism. As a country that has a long history of emigration, we should be to the forefront in the campaign against prejudice and intolerance. We need only look at the experience of our previous generations of emigrants to know how soul destroying intolerance and exclusion can be. The ignorance, and in many cases brutality, visited on so many Irish emigrants is known to every Member. The effect this attitude has on a young emigrant, often homesick and unsure of his or her place in a new city, can be devastating and lead to isolation, poverty, alcohol and drug abuse and, at its most extreme, wasted lives.

It behoves us as a people who have been on the receiving end of racism for much of our history to ensure this evil does not gain a foothold in our society. I am not suggesting that we do not have to address serious questions regarding multiculturalism, but we should address these issues as quickly and as comprehensively as possible and not repeat the appalling mistakes of other EU States in the past. I am confident that, if effectively implemented, the legislation will form part of that process and I urge the Minister to continue the progress achieved by this Bill in other legislation and policy initiatives.

The protection given to the travelling community is also of real worth. In this context, will the Minister ensure the recommendations in the report of the Commission on Travelling People are being implemented?

Despite the major error regarding disability rights in the Bill, the Employment Equality Bill is genuinely reforming legislation. The Labour Party has campaigned for the legislation for many years. It has been sought by many interest groups comprising, and working to advance the status of, the marginalised in our society. In particular I am pleased the legislation outlaws discrimination on grounds of age. Males over 45 are hardest hit by long-term unemployment. Many factors, including education and technical skills among that group, contribute to this. However, the age limits imposed by many employers, including the public service, are also a contributory factor to the stubbornly high level of unemployment among males over 45. That many employers, including the State, give out the message that workers are "over the hill" once they reach middle age has a detrimental effect on those seeking work. It also chips away at the motivation and energy needed by people searching for employment. It takes a great deal of energy and motivation to go out day after day seeking employment when one is constantly turned down for a job.

I am confident the new equality authority will bring about a cultural change in society in terms of the manner in which we treat middle-aged job seekers. In the USA many employers have recognised the value of having experienced and mature people working in their firms. This has lead to an influx of middle-aged workers into the retail and service sector which traditionally was dominated by students and young school leavers. The service sector is a growth area in employment terms here and, therefore, should be seen as an opportunity to redress the balance in this regard.

I pay tribute to the work of the Employment Equality Agency since it was set up in 1977. Many equality issues for women in the workplace have been addressed. From 1991-96 the number of women in the workplace almost doubled compared with the previous 20 years. That is an indication of the progress that has been made in this area. Women make up four-tenths of the workforce. Child care and low pay need to be addressed. Women still receive only 70 per cent of the average industrial wage for men. We still have a long way to go in this regard. While it is not easy to deal with the organisational culture in legislation, it is very difficult for women to break into certain areas of employment.

In setting up the new equality authority, we need to take on board much of what has been achieved by its predecessor. Its resourcing levels will be critical to ensuring this flawed but important legislation makes a real difference in our society. The House has often passed excellent legislation that seeks to improve and enhance the lives of ordinary working people only to find its implementation is hamstrung by a lack of resources and a dearth of funding. For example, the day to day effect of our health and safety legislation has been seriously undermined by the lack of resources allocated to the Health and Safety Authority. It took the tragic death of a young man on a Dublin building site to bring public focus to the worryingly low number of inspectors who enforce our health and safety legislation.

Passing legislation without adequately funding implementation structures is a useless exercise. It is imperative that we do not repeat the mistakes of the past with the new employment equality agency. I urge the Minister to ensure it is adequately funded and staffed. It is also important that the Government embarks on a major information campaign when the legislation is passed. Workers, employers and students must be made aware of their rights under the Bill in an accessible manner. I am confident that the Minister will receive the support and co-operation of the trade union movement and other interested groups in disseminating this information as widely as possible. However, the responsibility to plan, fund and initiate a campaign rests with the Minister. I hope he will outline his proposals in this regard. I welcome the fact that sexual harassment is included in the legislation but we also need an information campaign in this regard.

As Labour Party spokesperson on equality and law reform I welcome the Government's stated intention to introduce a disabilities Bill. The Taoiseach has stated that he will give information on when this Bill will be published. However, I am concerned that the Government may be using the proposed disabilities Bill as a smokescreen for its failure in this Bill to tackle the issue of reasonable access and accommodation in the workplace for those with disabilities. If there is a constitutional problem with tackling this issue in the Employment Equality Bill it follows that the same difficulty could apply to any future disabilities Bill. Priority must be given to appropriately amending this Bill rather than waiting for a disabilities Bill to give proper protection in the workplace to those with disabilities.

Where are the great amending initiatives proposed by Fianna Fáil to the original Bill? In Opposition Fianna Fáil tabled a raft of amendments to this legislation. In October 1996, when Mervyn Taylor's Bill was in this House, Fianna Fáil members were adamant that their amendments should be accepted. In an amendment, Deputy Batt O'Keeffe stated that it was "ridiculous" to omit Defence Forces personnel from the legislation. In support of that amendment, Deputy Bertie Ahern stated: "I hope we are enacting serious legislation, not mere words. The Bill as it stands cannot be described as such". However the reforming zeal expressed in Opposition has evaporated in Government.

Senator O'Meara tabled the same amendments when this Bill was debated in the Seanad but the Minister refused to accept any of his party's original proposals. The inconsistency shown has to be addressed. This inconsistency was also shown in the Protection of Shop Workers Bill. It is not helpful when one thing is said in Opposition and another done in office. That contributes to the cynicism about politics. I was disappointed at the attitude taken to the original Bill.

The Labour Party fully supports the inclusion of workers employed through employment agencies under the ambit of the Bill. The employment agency business has undergone phenomenal growth and now forms a significant method of recruiting employees. Employment agencies often specialise in the provision of contract employment. This system is often open to abuse by rogue employers. It is right and proper that companies, particularly some multinational companies, should not be able to circumvent this legislation by not employing people directly. From my own experience I know that many companies are using this method and I am glad that the Bill has addressed that loophole. It is important that the State treats all workers with the same respect. I am glad to see that the Government has got this aspect of the Bill right.

This legislation needs a comprehensive and ongoing information campaign. If we are serious about eliminating discrimination from the workplace it is important that this campaign is taken on vigorously and that it is effective. Knowledge is power and there is an obligation on Government to impart awareness of this legislation to the workforce. This is particularly true for those returning to work or school leavers entering the workforce for the first time. The pressure on both groups can often encourage them to be less than forceful about their rights and an employer's legal obligations. However, it is often the case that these groups are the people who most need protection. There are steps the Minister must take to address this problem. For instance, every FÁS trainee attending a course should be made aware of the new legislation and the avenues open if they feel their rights are being trampled on. This should also apply to other labour legislation as there are many rights in this regard but few people are aware of these rights.

Community employment workers as part of the training element of the scheme should also receive information on the effects of this Bill. People placed through the local employment service must also know their rights and be given the support and confidence to have them upheld. Local employment services have a big part to play in relation to inclusion in the workforce and with regard to those people covered by this legislation having access to work. Those who run these services should be proactive and be encouraged to reach out to the various categories who might be discriminated against and who are covered by the Bill.

There is a strong case for having a basic module on employment law and employee rights incorporated into every State-sponsored training or back to work scheme. I am constantly shocked at the low level of awareness of employee rights. This is often most prevalent in sectors where trade union membership is frowned upon and actively discouraged by employers. This goes back to the "knowledge is power" dictum. The State must take seriously its duties and obligations to provide this knowledge to workers, particularly to low paid, non-unionised workers who are often most vulnerable to exploitation and abuse.

Apart from its inadequacies which are crucial for those with disabilities and which I hope will be addressed, this is a comprehensive reforming Bill. It will give workers protection from discrimination and provide them with an accessible mechanism through which to pursue instances of discrimination. It sends out a strong message that this State insists that all persons are treated equally regardless of race, creed, marital status, sexual orientation etc. It is important that the State sends out such messages and that the philosophy of equality and fairness which underpins this legislation should pervade all aspects of Government activity and policy. If we enact this and other legislation such as the Equal Status Bill and the disabilities Bill we can hope that the social attitudes which cannot be legislated for will follow and that we will have a genuinely inclusive society.

Mr. Collins

I welcome this comprehensive Bill. The nature of work is changing radically and will have huge consequences for tomorrow's working environment. It is encouraging to see the Minister and his Department recognising this reality and being proactive in using this transitional period to implement policies which seek to eliminate prejudices which may exist in the labour market.

Discrimination must be eliminated from all aspects of employment and this Bill is an important step in that process. I also compliment the Minister on seeking to be at the forefront of modern employment equality codes in Europe. The importance of this issue is evident from the priority given to it since he took office. He has produced a comprehensive Bill which addresses the issue constructively and fairly. It lays a solid foundation for other proactive measures which will follow with the common aim of eliminating inequality, not just in employment but in a wider context.

This Bill stems from the 1996 Bill, provisions of which were found to be unconstitutional by the Supreme Court. The Minister must be commended on the redrafting of three issues which allows their retention within the scope of the Bill, particularly the provision of reasonable accommodation for those with disabilities. Section 35 requires 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. His willingness to examine the option of more specific disabilities legislation is welcome and highlights the importance he places on this area. Certain representative groups have reservations about aspects of the Bill in so far as they relate to people with disabilities. Those groups recognise that the provisions as they relate to people with disabilities, represent an important step towards ensuring that people with disabilities in future will be able to exercise their right to participate in work on an equal basis with other employees.

Research shows that households headed by people who are unable to work due to illness or disability are more likely to encounter poverty and experience deprivation. The level of unemployment among people with disabilities estimated at 80 per cent is unacceptable. The reasons are varied. The provisions relating to people with disabilities should help them participate in the labour market on an equal basis and reduce this figure not alone by offering protection to those affected but also by heightening awareness among employers of the value of those workers to their businesses. The Bill aims to eliminate all forms of discrimination, not only against people with disabilities.

Section 6 sets out the grounds on which discrimination is to be prohibited. They are marital status, family status, sexual orientation, religion, age, disability, race, membership of the traveller community and gender. Unfortunately, discrimination on grounds of gender still exists. The participation of and contribution of women in the workforce has increased dramatically since the Employment Equality Act, 1977, which presented new employment opportunities to women.

It is difficult to believe that only 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 devote the rest of their lives to home duties. There was a general expectation at the time, with some notable exceptions, that successful businesses would be run by men, banks were managed by men, corporate boards were chaired by men, Government Departments were administered by men and even a place at the Cabinet table was restricted to men. All that has changed. It is now accepted that a woman may choose any of the professions and, should she aspire to it, work to secure a top job in business, in the boardroom or in Cabinet.

The Bill has the potential to radically change the structure of the workforce as did its predecessor in 1977. While the 1977 Act was a huge success in boosting the number of women participating in the workplace, its success has not extended to providing the framework for women to achieve positions at the higher levels in the organisations in which they are employed. This Bill proposes to help redress the imbalance so that a woman can realistically aspire to secure a senior position wherever she chooses to work.

The new equality authority is a powerful tool which will enable progress towards equality and remove existing inequalities which affect women's progression in the workplace. Due to the shift of employment towards high-tech sectors there is a risk, given the rapid rate of change associated with the sector, that the skills of many of today's workers will quickly become redundant. This risk is greater among older workers and discrimination on age grounds should not be allowed to continue. There is a recognition across Europe that these workers represent a highly skilled source of labour and are by no means expendable. Enterprises must recognise the skills of capable and flexible workers and not disregard the skills of some workers because of traditional prejudices or outdated concepts of human resource management. To do so would lead to a reduction in our economic success and increase marginalisation.

This Bill is only the beginning of a wider initiative to create a more equal society and eliminate discrimination. Ireland's success owes much to well educated, flexible, reliable employees in a dynamic environment. Employment legislation must be dynamic to adapt to such an environment but equality must not be sacrificed in the name of success. The Bill should ensure Ireland has an all-inclusive, all-encompassing workforce as we face future challenges.

Mr. Gilmore

The stated purpose of the Employment Equality Bill is to end discrimination in employment on a number of grounds. It is inevitable that its second presentation will concentrate somewhat on discrimination on grounds of disability, the area on which the Supreme Court struck down the original Bill.

This second opportunity should help us to examine the Employment Equality Bill critically from the point of view of whether legislation is effective in dealing with discrimination in the workplace on different grounds, whether legislation is sufficient to deal with discrimination in the workplace and whether the Bill will be as effective as claimed.

We have to examine the question of discrimination generally. There are not many cases where one can point to direct overt discrimination in the workplace. There are very few cases where an employer will pointedly and overtly refuse to employ a woman or somebody on the grounds of discrimination prohibited in the Bill. However, the area of employment history is well scattered with cases where discrimination is alive and well and is being practised in an indirect, insidious and subtle way. The job is not refused and the promotion is not refused because one is a woman with a family and child responsibilities, but on some other grounds of suitability.

I agree with the comments made and the tributes paid to the work of the Employment Equality Agency, since its establishment 20 years ago. If we examine the two Acts which this Bill is replacing — the Anti-Discrimination (Pay) Act, 1974, and the Employment Equality Act, 1977 — there can be no doubt they have contributed enormously to greater equality in the workplace. The Anti-Discrimination (Pay) Act has certainly ended cases of unequal pay but it has not been successful in equalising the distribution of earnings as between men and women. Similarly, the Employment Equality Act, has been helpful in addressing the question of discrimination in the workplace. Similarly, the Employment Equality Act has been helpful in addressing discrimination in the workplace but we would have to reflect on how successful it and our employment practices have been in areas of indirect discrimination. Why are there still areas of employment with large numbers of women who have not managed to rise through the promotional process in significant numbers? One would expect, 20 years after discrimination in the workplace became formally illegal, that greater numbers would have been promoted. In the Civil Service there is only one female departmental Secretary-General; in local authorities, which employ huge numbers of women, there are no female county managers and only one female deputy county manager; there are no women chief executive officers of health boards or vocational education committees; and one must wonder why the number of female school principals is so disproportionate to the number of women teachers.

Fundamental questions must be asked about the effectiveness of legislation in addressing indirect discrimination in the workplace, such as the various direct and indirect discouragements. There are certain requirements on employees in order to enter the promotion rat race and many women are unable or unwilling to engage in them. Other discouragements are often placed in their way. It might also be interesting to examine the cases where women have come through the system to promotional positions to see what proportion of them have family or child responsibilities, because there is discrimination not only against women per se but additionally against parents.

One would expect this Bill to address those areas. If it were to abolish discrimination in the workplace it would be welcome, and many of its provisions and the procedures which it establishes are good. However, I am disappointed that it does not address discrimination where it occurs — in fact, it appears to address discrimination in the workplace everywhere except where it occurs and is difficult to shift. For example, when this Bill is passed it will still be legal to discriminate against certain employees on grounds of age or religion, especially in schools and hospitals. It will allow for discrimination against certain public service employees on grounds of citizenship, proficiency in the Irish language and residence. It will continue the discrimination in the Garda Síochána on height grounds and on grounds of disability, as was mentioned.

In some respects the Bill will make discrimination legal and thus make matters worse. Up to now there has been ambiguity about whether an employer could discriminate and that operated as a discipline on employers but when legislation provides for specific exemptions discrimination is effectively made legal. Instead of ending discrimination, some sections of this Bill may serve unwittingly to continue and promote it. I do not suggest we should have a regime in which an employer is obliged to employ someone who is not suitable for a job, is not competent to carry it out or is not willing to comply with the conditions of employment, and section 16 makes clear that the anti-discrimination provisions do not apply where the employer exercises his or her normal right not to employ a person who is not qualified for a job or to discontinue the employment of a person who is not doing a job, not fulfilling the conditions or is not competent. Given how clear that section is, I am at a loss to understand why the Bill is punctuated with additional exemptions which will leave the way open for discriminatory practice.

To deal first with age discrimination, section 6 states that the Bill will not apply to anyone under 18 or over 65 years. I do not question the under 18 provision but I question the over 65 provision. As Deputy Collins said, the world of work has changed dramatically, especially since the days when it was assumed that one's working life lasted from mid-twenties until the age of 65, usually in the same occupation and with the same employer, during which period one acquired pension entitlements. That has all changed — many employees voluntarily leave the workforce by taking early retirement in their fifties but may wish to continue in employment over a longer period, perhaps at a reduced remuneration. The golden rule that one must leave work at 65 is a thing of the past and should not be reflected in our legislation. This provision is discriminatory.

Similarly, section 34 contains a loophole which will allow discrimination on age grounds. Section 34(3) states that nothing in this Part or Part II shall make discrimination on grounds of age or disability unlawful, if there is actuarial or other evidence that significantly increased costs would result if the discrimination were not permitted. Section 34(4) allows for the fixing of different ages for the retirement of employees or classes of employees and section 34(5) allows for the fixing of a maximum age of recruitment which takes account of the cost of training and pensions. A case can be made from an actuarial or pension viewpoint where someone is employed late in life but why should that prevent a person from being employed in the first place?

I mentioned in the House previously that, right up to the second presentation of this Bill, some parts of the public service still used an age bar to recruitment — people over 50 could not apply for certain jobs. Could the Minister state what consideration has been given in the public service to the age of recruitment? Is it true that it is intended, following the enactment of this legislation, that people over the age of 55 could not be recruited to certain public sector jobs? There is a need for clarification. This loophole will be used to discriminate against people on grounds of age. This issue needs to be addressed.

Section 27 will allow the Garda Síochána to include a height requirement in recruitment. There is no justification for this and the opportunity should be taken to delete it rather than enshrine it in anti-discrimination legislation.

Section 36 contains a number of interesting provisions. It deals with certain categories of jobs in the public service, including members of the Garda Síochána and the Defence Forces, officers or servants of a local authority, harbour authority, health board or vocational education committee and teachers in primary and post-primary schools. Under the Bill employers of all these categories will be able to discriminate on grounds of residence. Under the old rule vocational school teachers were required to live within three miles of the school.

Employers will also be able to discriminate on grounds of citizenship. Does this mean that if somebody from Northern Ireland decides, under the new Agreement, to exercise their right to UK citizenship and seek employment here as a social worker with a health board, they may be discriminated against on grounds that they do not hold Irish citizenship? In the United States the only job a non citizen is not eligible to apply for is the Presidency. In this State one has to be a citizen before one can apply for the post of teacher in a primary or post-primary school or officer or road sweeper in a local authority.

Employers will further be able to discriminate on grounds of proficiency in the Irish language. I understand this is necessary in the case of teachers and appreciate that people availing of public services should be able to conduct their business through Irish but, following the recent decision of the INTO congress, it is an issue that should be revisited. I agree with the Minister of State, Deputy Ó Cuív, that it is no longer necessary for every public servant to have a smattering of half forgotten school Irish, that it is much more important to have somebody in the service who can conduct business through Irish in an efficient and effective way.

The question of disability has been dealt with. I agree with previous speakers that the Minister of State should examine seriously the case made by the Irish Council for People with Disabilities and the Irish Congress of Trade Unions. We will have an opportunity to return to the relevant provisions on Committee Stage.

Section 37 was the subject of much debate when initially considered. It has been considerably improved. Why is it necessary to include it in the legislation? Although financed from the public purse, most hospitals and schools are denominational. Section 37 will make it legal for employers in these hospitals and schools to discriminate on grounds of religion. While it will be argued that this does not happen regularly and I am aware that the case was made in the debate on the original Bill that a school run by a minority religion somewhere in the south of the country was encountering difficulty in recruiting a co-religionist as an assistant teacher, we have to look at the wider picture. It is far more likely that the problem of discrimination on grounds of religion will arise in the area of promotions, for example, when a nurse who has not been a candle carrying member of the church to the degree that satisfies her employers applies for the post of matron in a hospital or when a teacher applies for a senior position in a school when discreet inquiries will be made in their past parishes about their religious practice. These are areas in which there is indirect discrimination.

There is an additional ground which should be considered for inclusion, trade union membership. While I appreciate this issue is touched on in the legislation dealing with dismissal, having regard to some of our recent industrial relations experiences, the opportunity should be taken in this legislation to make discrimination on grounds of trade union membership illegal.

Mr. McGuinness

I commend the Minister of State, Deputy Wallace, on her work to date in the Department. She has demonstrated a clear understanding of her brief and a willingness to give leadership and to listen. Given her commitment and energy, I hope we will see further legislation in her name to the benefit of the marginalised and disabled.

I support the Bill, if for no other reason than it focuses on nine important areas in which discrimination needs to be outlawed. However, legislation on its own is of little use. The Bill may give Ireland one of the most modern employment equality codes in Europe on paper but this will be of little use if it does not impact in a tangible way on every sector of society which is discriminated against.

Social developments in each of the nine areas must be taken into account and the legislation backed up with funding and support mechanisms for employers. Training and information technology are essential to make the legislation work and equip the various sectors to take their place within the mainstream workforce.

The Employment Equality Act, l977, outlawed discrimination against women. It was this Act, with the social changes in the l970s and l980s, that brought women back into the workforce. Community groups, State agencies and the personal commitment of individual women helped to reskill women in general and prepare them for entry into the workforce, which is ever changing.

In spite of the fact that women account for four out of every ten jobs, it is not acceptable that senior positions in almost every sector are still dominated by men. Women have much more to offer. The glass ceiling should be removed once and for all from the workplace and real opportunities created for women. Neither is it acceptable nor wise to create separate women's groups or positions within the workforce outside the mainstream system, just to accommodate the advancement of women. The system must be all inclusive and without discrimination. If this is a real situation we can claim there has been advancement. However, I believe real advancement is not being achieved but that token positions are being made available to women. Voluntary committees often include token women. That is unacceptable and does not help the campaign to advance women in the workforce.

The Defence Forces and Garda Síochána are typical examples of bodies in which women are discriminated against. Advances have been made, but these are not significant when one considers the numbers and positions involved. No real impact has been made. The Defence Forces have recently made the involvement of women even more difficult by changing the height requirements and other qualifying measures. This situation should be re-examined as a step towards removing discrimination in the Defence Forces, with a view to taking a more modern approach to recruitment. Far more women would join the Defence Forces if these nonsensical restrictions were removed.

Women do not find it easy to achieve senior positions as they have a higher mountain to climb in this regard. There was a reference to the local government system, in which women are very poorly represented at management level. The 29 county council managers are male and there is only one female assistant county manager. There are also no real management positions occupied by women in the urban councils. The Minister of State, Deputy Mary Wallace, had a long discussion on this issue during a recent visit to Kilkenny, in the course of which many of the problems faced by women within local government structures were raised.

Political parties must also examine their systems to ensure women are not discriminated against. It is a reflection on the whole political system that there are not more women in this House and local government. That is a failure on the part of all political parties and I encourage change in this area to allow more women to become involved and take up the challenge of public position. In that way we could achieve more women representatives in local and national government.

These examples clearly demonstrate that while legislation is helpful, the tangible results are fairly empty. This Bill will have the same fate if we ignore the mechanisms required to make it operate in the workplace. The greatest challenge in the workplace is faced by the disabled. A concentrated effort is needed to train, and if necessary reskill, people with disabilities. They must be given the opportunity of being capable to take up specific jobs. Those who are skilled must not have to deal with the obstacle of physical barriers in the workplace. Employers who are anxious to give employment and break down the barriers of discrimination must be assisted by the State in an immediate and tangible way.

Given the developments in information technology, working from home with specialised hardware and software should be a real option for women who wish to return to the workplace — and the disabled.

Mrs. Barnes

Or for men who wish to stay at home.

Mr. McGuinness

We are probably becoming a threatened species — we must be very careful.

The State should support education and grants for this new style of work, as happens in countries which are more advanced than us. Many people are able to return to the workforce as a result of technological advances.

Recognition should be given to employers who are willing and proactive in their efforts to have an all inclusive workforce, male and female, able bodied and disabled. That would show other employers what can be achieved, the abilities which exist and the innovative ideas which can attract the disabled and men and women in the home into the workforce. This new practice of working from home is not being encouraged, talked about or supported. If it was, it would have a major impact on discrimination in the workforce. The resulting expansion of the workforce would mean that more people would have a better quality of life and be able to offer more to society.

The travelling community falls within the remit of the Government and local government. That community is being truly discriminated against and few efforts are being made to break that cycle by making education available to it. Some efforts are being made but we must put far more into the system if we are to break that cycle of discrimination, which begins at a very young age and the only way to prevent it is through education. We are very lax in our approach to providing that assistance.

The inability of the travelling community to participate in the workforce is discriminatory. I am proud to say that at our meeting last week the Kilkenny enterprise board made four grants available to members of the travelling community who are involved in business to get them back into the workforce. They sell carpets or other wares or provide services. They do not recognise the system for one reason or another and we discriminate against them by not involving them in the system. We broke that cycle by making those four grants available and by providing them with business education. That will have a positive impact.

We also discriminate against the travelling community in terms of housing because housing policies are not necessarily all inclusive. We must step out of the present system, step up our operation and get these people involved.

It is up to all Departments to make resources available to marginalised communities so that they can break the cycle of poor education, not only for their children but also for themselves. Parents are entitled to return to the workforce. Given the developments in technology, it is becoming increasingly obvious that people will not retire at 40 or 50 years of age. There are jobs available if one is in a position to re-educate and learn new skills within the system. Employers will recruit from more mature members of the workforce.

If we keep an open mind and are willing to provide finance we will be able to break the cycle of young people dropping out of the system. A net will be provided to enable them participate in the local community and better educate themselves so that they will not face discrimination later in life. If their parents are allowed avail of this system they also can become part of the rescue package which their children will seek. In this regard, we must support youth links, youth programmes and community groups to allow them act as a net. We must consider them in terms of the way the system discriminates against people.

Adult education also needs to be developed to allow for the return of adults to second level or for making third level available to people who had to opt out of education at an early age. The system should not discriminate against them because if they experience second or third level education they are able to educate their children at home, obtain new jobs for themselves and access information technology. They are also able to provide themselves with new skills in their forties and fifties which will enable them return to the workforce. The Government must, therefore, use all of the relevant agencies, including local government, to ensure this area is developed and that it does not act as a factor for discrimination in the future.

I welcome the Bill. However, considerable work must be done in this area. We should be aware of it because it affects all sectors of society. We should continue to enact legislation which will improve the lot of those who are discriminated against.

Mrs. Barnes

It is with great pleasure that I find myself with an opportunity I did not think I would have to address this Bill because at the time it was introduced by the then Minster for Equality and Law Reform, Mervyn Taylor, I was not a Member of this House. The referral of the Bill to the Supreme Court has provided the House with an opportunity to fully debate it again. In this regard I pay tribute to the Members of the Upper House who did such a good job in considering the legislation. I also welcome the involvement of the Minister of State at the Department of Justice, Equality and Law Reform, Deputy Mary Wallace, in piloting the legislation through this House. Over the years she has shown through her work that she not only has an in-depth knowledge of the legislation but also a working knowledge of how it should be implemented.

I am one of the veterans who helped draft the Employment Equality Bill of 1977. I also served for five years on the Employment Equality Agency after it was established. I welcome the huge change in mindsets since then. We still have to cope with attitudes, especially with those affecting minorities and we are only beginning to challenge these.

There are many horror stories from the 1970s when the concepts of equal pay and equal opportunity were first debated. The proposal to discontinue advertising which included sexist wording we were told would almost destabilise society. We must remember, however, that the warnings about the consequences in terms of the damage to the economy and the suggestion that women were their own worst enemies to be seeking this type of legislation because they would find themselves unemployed has echoes today in the reaction to proposals to introduce a minimum wage.

We still have an employment pyramid, despite the equal pay Act and the Employment Equality Act, 1977. The climb up the ladder for women from the broad base of underpayment and insecure employment is still very tenuous. Given this, we need affirmative action when implementing the legislation. We can spell out the implications of discrimination and how far, legally and constitutionally, we can go to remove them, but our society is permeated with a system of excluding all the people we are now trying to include.

This huge challenge is unlikely to be met simply by passing this Bill into law and I hope a test case is taken challenging its provisions. We also need to concentrate on the needs of the workplace and society to enable people participate equally. This old debate needs to start again. I welcome the contribution of the Minister of State, Deputy Mary Wallace. I also welcome the contribution of Deputy O'Sullivan who added her considerable expertise to the debate.

The debate on affirmative action must start in this House. Deputies McGuinness, Gilmore and others are right in pointing out that the House which has produced this legislation has a very small number of women in decision-making positions. Perhaps there should be a campaign to ensure that women get elected in the local elections next year. The statistics on the lack of women at local government level is a reflection on our planning environment. It is women who, to a major extent, keep their communities going and improve society. We therefore need to consider how women can be represented on the administrative side of local government. It is astonishing that 21 years after the employment equality Act, there is no woman county manager, although women are central participants in an informal way in local government.

If we are considering positive action and ways this legislation can be implemented effectively we must seriously promote child care facilities within the work place and the community. There is no point in conning ourselves into thinking that women will be able to undertake training, seek promotion or break through the glass ceiling, to which we all refer, if we do not provide them with support facilities. Deputy McGuinness rightly referred to the need for positive action programmes to encourage employers in this regard. They must also be provided at Government and State level.

There are models which show how effective this strategy can be. For instance, apart from providing, grant aiding and encouraging child care facilities as part and parcel of employment in Sweden, reward and bonus systems are built in for firms which actively and affirmatively encourage the training and promotion of women. The State adopts a hands-on approach to this matter. State tenders have to be considered in terms of gender proofing and employers' provisions to cover employment and equal opportunities for women. For the Bill to work, it must be underpinned by that type of structure. This State does not need to make any excuse to give preferential treatment to employers who have an affirmative action programme for women and other minorities. Support was also provided through co-financing the provision of those facilities at State level.

I am aware of a pilot programme, which has been allocated some EU funding and designed to encourage employers to provide child care facilities. The take up of the programme has been very positive. While it was expected large firms would avail of it because it would suit them economically, a large number of small and medium sized firms have also availed of it. I hope we are pushing an open door in this regard, but we need to take affirmative steps and put aside budgetary considerations.

The State and social partners can support this area by showing how serious they are about the provision of parental leave. Ireland is lamentably behind most other members states of the European Union in encouraging and implementing the provision of parental leave. Most other member states have done major work on this and ensured that parental leave is financed, which is a key consideration. There is no sense in providing unpaid parental leave because we know who will be forced to leave work. Unless we actively encourage the provision of paid parental leave for fathers as well as mothers, women, as well as our economy, will be in an extraordinarily weakened position vis-a -vis other countries. I hope the training and technology that drives our economy will demand that we do not lose members of our skilled, trained and professionally qualified workforce. We are all aware many women try to combine domestic and work responsibilities with little or no acknowledgement and their partners are not allowed, through any form of State intervention, to participate equally or even in a subsidiary position in the home through parental or paid leave. Eventually some of those people will be forced out of the workforce but we cannot allow that to happen. Apart from the personal deprivation this presents to many women, our economy cannot afford to lose those members of the workforce.

Attention must be paid in this legislation to employment regulations on age. The Minister is aware many Deputies have talked about ageism and jobs for which there is an upper age limit. At the Social Affairs Commission and the European Parliament levels it has been acknowledged there is an indirect discrimination against women on age grounds. Many women today and those who were forced out of the workforce through the marriage bar or child care responsibilities find it almost impossible to rejoin the workforce. There was a recommendation, if not a directive, that women in those circumstances should not only have access to mainstream employment retraining, but to specific retaining and confidence building programmes which would be EU funded. The economy is losing out because of the lack of participation of those people in the workforce. While this applies mainly to women it also applies to men who are long-term unemployed. Women who are not on the live register do not have access to training programmes available to others. Not alone does the system not make sense in that it does not acknowledge the role mothers have played in the home, it does not make economic sense. This area needs to be dealt with to back up this legislation.

I am sure other Deputies share my concern and sense of depression that recently published FÁS apprenticeship training results reveal only 1 per cent of its apprentices are women. That is the position in 1998, 21 years after equality legislation opened up those trades and apprenticeships to women. There is something extraordinarily wrong with this position. It requires the concerted efforts of school counselling, FÁS promotion and some type of State intervention, perhaps with the assistance of the affirmative action section of the legislation, to turn this position around. Those results are a register of failure in this area.

I welcome the fact that the rights of women and other groups addressed in this legislation will be covered by legal and social support which does not exist at present. Those structures must be built into the legislation. I also welcome the human rights commission and the extra resources that I hope will be given to the equality authority. When implementing this legislation we need to seriously consider the area of legal aid. Many of the people who need redress under this legislation will require access to free civil legal aid.

Officials in the free legal aid centres have commented that a great number of workers who actively and successfully pursued claims have legal support. It is worrying that many others who do not have access to that support have not had the opportunity to bring cases to court, this area needs to be examined. Those officials also commented that the Employment Equality Agency has a legal section, but with one solicitor and three case workers it is understaffed. They also believe the agency would be better occupied using its expertise to monitor, develop and provide information on the law in this area. We need to provide access to free civil legal aid outside the authority and, perhaps, allow the legal unit of the authority to concentrate on monitoring, evaluating and informing.

Many speakers have said part of the danger associated with introducing legislation to include those who are excluded and provide measures to remove discrimination is that an intensive programme of information and support is required. This would enable those who feel they have a case on discrimination grounds to have the support to test it. One of the provisions in the Bill I welcome changes the position under the first equality legislation where the burden of proof was placed on the worker. He or she had to take the case and prove it rather than the employer having to take responsibility for discrimination. This must be changed. However, the area of sexual harassment still needs to be considered. The Bill places a huge onus on a complainant to carry their case alone and try to prove it. We are aware from women and men who attempted to take cases that it can be a lonely and alienating process. For various reasons they may not get much support in pursuing cases in the workplace. This aspect needs to be addressed.

Other speakers mentioned the need to concentrate more on discrimination against travellers. The Irish Traveller Movement has made recommendations which should be taken seriously. It is patronising to tell travellers what is good for them and how they should behave when we should be listening to them and understanding their needs. From the comments of Deputy McGuinness, and others, it appears we can are coming to terms with that issue.

I hope the Bill is a foundation stone for the rights of citizens, excluded people and minority groups. All the power of legislation and our influence should be brought to bear to ensure another minority group involving refugees is not created and discriminated against. This Bill, and the legislation relating to refugees and asylum seekers, should be enacted urgently to deal with this matter. It would be ironic if we managed to come to terms with and perhaps even counter some of the discrimination with which Irish citizens have coped — I pay tribute to all the groups who have lobbied consistently on the issues covered by the legislation — but left the most vulnerable, excluded and voiceless people outside the remit and protection of the Bill. Politicians are responsible for ensuring that in removing discrimination against some groups, we do not burden others with intolerance.

Mr. J. Brady

I am pleased to contribute to the debate on this important Bill. The debate on the equality Bill of 1996 lasted from October 1996 to April 1997. The legislation was examined carefully in both Houses. Unfortunately, it failed on three constitutional grounds, perhaps because the legislators were trying too hard to protect the interests of disabled people in the workplace.

This is significant legislation which outlaws discrimination in employment on nine distinct grounds — age, race, religion, family status, marital status, gender, disability, sexual orientation and membership of the travelling community. It is broad ranging and comprehensive in its scope and deals with all employment related areas, including access to employment, vocational training, trade unions and general working conditions. It also covers collective agreements as well as discriminatory advertising in newspapers, on the Internet and in all other media.

In many respects it is ground breaking legislation because Ireland does not have a great reputation for employment equality. Flagrant violations of the principles of equality are found throughout the workplace. Even the public service is not free of inequalities. Women and disabled people are the principal sufferers, but this legislation is ground breaking in an EU context. For example, Britain has legislation on race relations, sexual discrimination and disability. In Northern Ireland there is also legislation prohibiting discrimination on religious grounds. However, we must look as far afield as Australia to find legislation as broad ranging in scope as this Bill. Once passed, it will give Ireland one of the most modern equality codes in Europe.

Irrespective of whether we like it, society is radically changing. These changes, which have been most noticeable in recent years, have had a profound effect on the workplace. It is hard to believe that until relatively recently places of work were populated mainly by men with permanent jobs, most of whom regarded them as jobs for life. Society took it for granted that women who entered the workforce would occupy the lowest rung of the career ladder. It was expected that they would retire on marriage or after their first child was born and devote the rest of their lives to home duties. In such times there was little need for change, adaptability or flexibility. Consequently, matters remained unchanged.

However, the current day workplace bears little resemblance to the workplace of old. Change is now accepted as part and parcel of everyday working life. The evolving work environment now consists of a wide variety of employment options, including frequent job changes, temporary jobs, part-time work, job sharing and flexitime. It is now populated by women and men, able bodied and disabled, who all demand their right to a full role in economic life, including a proper place in a more flexible workplace. These changes are particularly noticeable in the case of married women. In 1971 only 14 per cent of women in the workplace were married. Today, approximately half 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 effectiveness of enterprise while at the same time allowing women and men to devote a sufficient amount of time to their families.

However, while women have steadily increased their participation in the workforce, they have not been equally successful in achieving positions at the higher level of professions or the organisations in which they work. Women have been the victims of direct and indirect discrimination. There is a continuing trend for women to be grouped in professions and industrial sectors where low pay traditionally has been the norm. The challenge now is to put measures in place to help women build on the gains they have secured in the labour market. The Bill will encourage a more active approach to tackling these obstacles.

Under the Bill the new equality authority is given statutory powers to conduct equality audits in employment generally and in particular sectors so that progress towards equality can be reviewed and action plans put in place. Since fewer people are guaranteed a job for life, more older people than ever are seeking work. With the workplace becoming much more fluid and complex, the issue of employment equality becomes not only an economic imperative but must be regarded and dealt with as a fundamental human right. Every individual has a basic human right to seek and obtain gainful employment and to progress through to promotion. It is imperative that our laws prohibit discrimination based on personal characteristics which are unconnected with work performance.

The interests of social justice also 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. Unfortunately, discrimination in the workplace is not an illusion; sadly for many people it is a reality. Labour force surveys show that older workers, once unemployed, are likely to remain so for much longer than their younger counterparts. One of the important policy aims of the Bill is to change this type of behaviour in the interest of social justice as well as from a public policy perspective.

Another area of discrimination which is unfortunately and regrettably widespread relates to disability. An 1991 official report by the European Commission concluded that people with disabilities in Ireland represented 7 per cent of the population. A labour force survey conducted by the Commission two years earlier concluded that "the chances of someone with a disability being unemployed are significantly higher than someone without a disability".

Two of the three aspects of the 1996 Bill which were judged to be unconstitutional were deemed to be technical in nature and I will not go into them, but the third referred to equality of employment for people with disabilities. The 1996 Bill required the employer, arising out of the employment of a person with a disability, in certain circumstances to provide special treatment and facilities unless he or she could show undue hardship. The Supreme Court decided this provision constituted an unjust attack on the property rights of the employer contrary to Article 43 of the Constitution.

In the new Bill the Minister was prevented from obliging employers to meet the cost of these facilities, other than of a minimal nature. Yet reasonable accommodation, depending on the extent or nature of the disability, can and does involve the provision of facilities such as ramps, low level fittings and reading equipment as well as special working hours. A wide variety of equipment and facilities are required to ensure equality of opportunity for access to employment. It is obvious from the Supreme Court decision that the onus cannot be placed fully on the employer and in these circumstances the State has an obligation to set the process in train to put in place positive measures to meet these needs.

Tributes must be paid to the many voluntary organisations and bodies who have done trojan work in the relentless fight for the needs and rights of their disabled members. The Government is concerned to ensure the fruits of the economic boom and prosperity are availed of to promote the rights of our disabled who constitute a significant minority and to provide them with the opportunities to participate fully in the workplace as well as in all other aspects of society.

I commend announcements and decisions in recent months by the Minister for Justice, Equality and Law Reform and other Ministers to provide additional resources and funding for all areas of disability. I pay tribute to my constituency colleague, the Minister of State, Deputy Mary Wallace, for her interest in and dedication to the issue of disability, not only as Minister but as spokesperson prior to being appointed as Minister. She does a vast amount of work for those people not only in the constituency but across the country. I wish her well and compliment her.

I welcome the Minister's decision to establish a national disability authority. Substantial additional resources will be needed through grant aid and other means to ensure equality of opportunity for access to employment and training is available to the disabled on the same basis as to any other group in society. That is the core issue.

Minister of State at the Department of Justice, Equality and Law Reform (Miss M. Wallace)

I thank Deputies who contributed to the debate and assure them the views they expressed will be carefully examined in the weeks ahead. The ambition of the Government, and of the previous Government, has been to develop anti-discrimination legislation which provides protection on a very wide range of grounds. The Bill realises this ambition and, in doing so, will place Ireland among the most advanced EU member states in tackling discrimination in employment. Some Deputies may have overlooked the considerable merits and the ground-breaking nature of this important initiative, but the vast majority of contributions were extremely positive and helpful. It is important to recognise that this legislation has adopted a sophisticated rights-based model and has tackled a broad range of complex, legal, social and economic considerations. The Bill strikes an appropriate balance between these various considerations and is sensitive to the many issues involved.

I wish to refer to a number of points raised by speakers. The question of the equality authority was raised by Deputies Fitzgerald, O'Sullivan and Barnes. The Deputies mentioned the importance of funding for the new infrastructure. The Government is committed to put in place an effective functioning infrastructure that will publicise the benefits of the new Bill and work for the promotion of equal opportunities for the provision of redress. An indication of this commitment is that funding of £2.1 million has been secured in this year's budget for the new arrangements. This provision covers costs associated with the present level of activity in the Employment Equality Agency as well as once-off accommodation costs for the new institution.

The question of sexual harassment was raised by Deputies Barnes, O'Sullivan, Fitzgerald and other Deputies. They spoke of the need for a publicity campaign to appraise people of their rights regarding sexual harassment. Section 54(4) enables approved codes of practice to be admitted in evidence in proceedings under the Bill. Given that a code of practice has been adopted in this area, approval for a code on this subject under the Bill would be possible soon after the Bill as passed is brought into operation. This will enforce the protective approach currently applied in respect of sexual harassment. The conducting of a wide-ranging publicity campaign in conjunction with the new equality authority to create an awareness of people's rights in the area of sexual harassment is important. I am confident the new authority will be as successful in achieving these aims as is the Employment Equality Agency today.

Deputy Brady referred to the national disability authority. I thank the Deputy for his positive comments. An establishment group with the task of preparing detailed proposals for the establishment of a national disability authority was set up in November last year and is well advanced in its deliberations. It is also examining the question of a disability support service. As Deputy O'Sullivan indicated, departmental responsibility for the training and employment of people with disability currently resides with the Department of Health and Children, reflecting the old medical model of disability rather than the currently favoured social rights model.

The transfer of certain responsibilities from the Department of Health and Children to the Department of Enterprise, Trade and Employment is engaging the attention of the establishment group. Preliminary work on the legislative provisions required for the establishment of a national disability authority and disability support service is under way in the Department. The decision of 18 November asked the establishment group to report back in six months as regards the work involved.

Disability issues were raised by many Deputies, in particular by Deputy Brady who gave a comprehensive view on the issue. I thank him for his positive remarks on the disability area. On the important question of reasonable accommodation, which was raised by many Deputies, I received a range of proposals for changes to the provisions of the Bill relating to disability and the question of reasonable accommodation. The provisions, which are the subject of the proposals, are those which in the main have been amended to take account of the Supreme Court judgment concerning their unconstitutionality. The observations of Deputies also focused on these provisions.

It is important to recognise the complexity of the issues involved, which should not be under-estimated. We discussed these complexities when the Bill was debated in the Seanad. Arising from those concerns, provisions in the Bill were examined most carefully. Unfortunately, it has not yet proved possible to develop a formula of words to pass the test of legal certainty and constitutionality and the test of acceptability to people with disabilities. I give a commitment that I will continue to examine these provisions, particularly between now and Committee Stage, to see what more we can do.

On the important question of nominal costs, to which Deputies O'Sullivan, Fitzgerald and Brady referred, it is important to recognise the nominal nature in section 35(4). I suggest the term "nominal", as used in the Bill, may be interpreted in a relative sense. In other words, what may be considered nominal by a large business employing hundreds of people may not be the same as that considered nominal by a small employer with only a few employees. As I indicated in my opening speech to which Deputy Brady referred, an important part of the nominal cost factor is to take into consideration that State supports for workplace adaptation and equipment will be taken into account as well as any costs borne by the employer.

Deputy Gilmore asked fundamental questions about the success of equality legislation in tackling the vertical and horizontal segregation in the labour market which still persists. Deputy McGuinness also took up this important issue and gave us some insights into the problems of dealing with the glass ceiling in all aspects of Irish life from the Defence Forces to local authorities to political parties. The issue was also raised by Deputies Barnes and Fitzgerald, who was with me on the Women's Rights Committee when we trashed this out on many occasions. A point made by Deputy Barnes, and others, was that despite the existence of equal pay and employment equality legislation, women remain in certain careers and do not seem to make it up through the lines. It is an issue we must keep to the forefront until it is addressed across the board.

Like all Members, I appreciate that equality of opportunity and employment cannot be achieved solely through legislative provisions in that it also requires a greater recognition of the value and contribution of equality opportunity policies in employment. These features in the Bill, as Deputies Collins and Brady, so perceptively observed, will underscore measures to promote equality in employment. Positive action, codes of practice, equality reviews and action plans all have valuable potential in this regard. We must always try to support this position.

In addition, my Department is undertaking a study in conjunction with the Employment Equality Agency to obtain more information on the underlying reasons for the continuation of the persistent male-female wage gap. I hope we can build on this information through the new proactive powers of the proposed equality authority to begin to change this unfortunate fact in the Irish and international labour markets. I take the points made by Deputies that there is ample room to advance further the drive towards equal opportunities. I am already tackling the issue by developing policies for the reconciliation of work and family life. Many of the points raised by Deputy Barnes were important, particularly those concerned with the area of child care.

As Deputy Fitzgerald said, we are now operating in a completely different culture and environment than that which existed when employment equality legislation was first introduced 20 years ago. In the Ireland of today, an appropriate infrastructure is necessary to facilitate parents to fully participate in the labour market while at the same time carry on family responsibilities. This need has become all the more stark in recent years with forecast demographic changes in the labour force both in Europe and at home and the tight labour market which exists in our buoyant economy. Deputy Barnes made the point that Ireland cannot afford to do without these people in the workplace.

In Ireland, women comprise almost 40 per cent of the labour force and for these reasons and, more particularly, because of the principle of equality, the Government is committed to the introduction of family friendly initiatives. In accordance with Partnership 2,000 and the EU directive on parental leave, the Government will introduce a parental leave Bill which will entitle parents of young children to three months leave to help them reconcile work and child rearing responsibilities. Work on a Bill to give effect to these arrangements is well advanced in the Department. In accordance with other commitments under the partnership, the expert working group on child care under the aegis of our Department was established last July. This expert working group, which is representative of all major players in the child care area in the public, private and voluntary sectors, was established to develop a co-ordinated policy for child care and the group is due to report back to Government in December.

Deputy Barnes made some interesting suggestions about mainstreaming and positive action measures. I note her concern that suitable levels of budgetary provisions be set aside to develop these initiatives. I am most interested in the proposals for mainstreaming gender equality in the context of the round of the community support framework post-1999 and look forward to exploring the policy options which will present themselves for the support of employment and equal opportunities into the early years of the new millennium.

Deputy Gilmore referred to section 37(1). A provision on the lines of this subsection is essential. The text of the provision is the culmination of a long process of consultation bearing in mind the Constitution. The section, as it stands, represents a reasonable and measured balance between very different views on a complex and sensitive issue. The provision benefits considerably from the constructive submissions made by the various interests in this area and demonstrates the Government's commitment to protecting the legitimate interests of all concerned. In particular, this provision benefits considerably from the constructive submissions made by both teachers and churches.

It is not a victory for one side over the other but rather the Government's best effort to find the right balance which protects the legitimate interest of both. In so far as it gives discretion and flexibility to denominational bodies, it does so in order to support the development of greater pluralism in Irish society and to afford due respect for the certain rights of minorities in the State. However, this discretion is made subject to certain clear criteria and is subject to adjudication on a case by case basis by an independent director of equality investigations and by the Labour Court.

Deputies will be aware that the Supreme Court in its consideration of the Bill following the Article 26 referral by the President last year, gave considerable attention to this particular provision and, ultimately, held it to be constitutional. Deputy Fitzgerald referred to the powers conferred on the director of equality investigations and the Labour Court under the Bill to enter premises, obtain information, etc. These powers are analogous to those contained in existing employment equality legislation and are common in labour legislation. They are well founded to enable the director and the Labour Court to effectively investigate disputes under the legislation, particularly in the event of a failure to co-operate with the investigation by any of the parties involved. I hope the Deputy will review her position in light of these considerations.

I note Deputy Gilmore has concerns about the height requirement for recruitment to the Garda Síochána. I draw his attention to the nature of the exclusion which recognises the different characteristics of men and women as regards height while at the same time responding to the security, public safety and policing benefits of having a Garda force whose height profile is taller than the population at large.

Deputy Fitzgerald drew attention to the complexities of the Bill and the fact it is not as accessible as it might be. The style of the Bill has been dictated by the necessarily complex and constitutional difficult issues covered in the legislation. An explanatory leaflet entitled "The Employment Equality Bill, 1997" has been available free of charge from the Department since the Bill was published in December. This leaflet is now accessible on the Department's Internet website and the Deputy can be assured that when this important legislation is enacted, a comprehensive, readable guide will be made available to an appropriately wide audience. That issue was also of concern to Deputy O'Sullivan.

A number of Deputies referred to the new centrality of equality legislation, both in employment and equal status, in the context of developments for peace on this island. This centrality is linked, in turn, to the emerging consciousness that equality of opportunities is not just an employment issue mainly affecting women but a basic human right. The Employment Equality Bill is one essential element in forging a more equal and just society here for the future.

The Bill is a central element in the Government's programme to advance equality and is a vital step in the process towards the elimination of discrimination. In this regard, the Bill contains many important and innovative provisions. For the first time in the history of the State, the Defence Forces will be legally obliged to ensure they do not discriminate on grounds of sex. There is scope for the development of positive action measures to combat existing inequalities and the law in relation to sexual harassment has been codified.

The Bill also sets in place the infrastructure for equality in the new millennium. There will be a new Office of the Director of Equality Investigations to hear claims for redress under the Bill, and further equal status legislation. The Employment Equality Agency will be replaced by the new equality authority with new powers to develop statute based codes of practice and to audit and review the advancement of equal opportunity programmes and policies at enterprise level.

The Bill has been developed in response to a broad and extensive consultation process and the constitutionality difficulties identified by the Supreme Court. I know some people hold the view that the Bill might have had a wider scope. I understand also that others regard it as over generous in several of its provisions. It is a matter of judgment to balance the complex legal, social and economic issues involved so as to achieve viable legislation. I am always pleased to consider alternative proposals which seek to refine the balance. I look forward to studying in detail the proposals for amendment tabled on Committee Stage. I thank all Deputies who contributed to the debate and I assure them their comments will be considered before Committee Stage.

Question put and agreed to.

Dáil Éireann díospóireacht - Wednesday, 29 Apr 1998

Employment Equality Bill, l997 [ Seanad ]: Second Stage (Resumed).

Dáil Éireann díospóireacht -
Wednesday, 29 Apr 1998