Amendment No. 2 is an alternative to amendment No. 1 and both may be discussed together. Is that agreed? Agreed.
SECTION 2.
I move amendment No. 1:
In page 8, subsection (1), lines 24 to 39, to delete the definition of "‘disability'" and substitute the following:
"‘disability' means the impact on an individual of a duly recognised physical, sensory, psychological or mental impairment which affects or substantially reduces their prospects of securing, retaining and advancing in employment; and ‘physical, sensory, psychological or mental impairment' means—
(a) the total or partial loss of a person's bodily or mental functions, including the loss of a part of a person's body, or
(b) the presence in the body of organisms causing or likely to cause chronic disease or illness, or
(c) the malfunction, malformation or disfigurement of a part of a person's body, or
(d) a condition or malfunction which results in a person learning differently from a person without the condition, or
(e) a condition, illness or disease which affects a person's thought process, perception of reality, emotions or judgment or which results in disturbed behaviour,
and shall be taken to include an impairment which presently exists, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person;".
There is great concern among all groups dealing with disability regarding the definition of "disability" in the Bill. One group suggested it would prefer if the Bill was not proceeded with because this was a medical definition and the people it represents are not ill. I am sure the Minister has received many representations on this. I have lost count of the number of people and groups who have contacted me. People with disability are not ill. Those who contacted me were adamant about this and upset and concerned with the model set out in the Bill.
My amendment was agreed following discussions between the ICTU and IBEC.
No.
That is what I have been told. I have moved the amendment to indicate the extreme displeasure and concern of people with the definition of "disability" provided in the Bill. People are open to discussion on this and are concerned they are being ignored. The people who should be protected by this Bill, those whose lives are affected by it and those whose lives we hoped the Bill would improve, believe the reverse will happen because of this definition.
According to the CPSU document it cannot be emphasised too strongly that the medical definition in the Bill is offensive to many disabled people. It goes on to say that focusing on the health status of individuals in a manner that would portray them as sick or suffering from ill health rather than on a person's ability to function in employment is inappropriate. In addition, those who met me made clear that disabled people employed in the Civil Service are deemed medically fit and capable of performing the functions of the posts to which they are assigned. To categorise them through this definition as having ill health is inappropriate. They argue it is contrary to the principle of nondiscrimination in relation to equal employment opportunities for people with disabilities. On a practical level there is great concern that the insertion of a medical model in the legislation will lead to the introduction of medical assessments of a comprehensive nature for all persons seeking employment. This would be unnecessary and lead to wasteful costs associated with the process, not least for the disabled person concerned. We must take into account that, unfortunately, disabled people who find employment are generally boxed into lower paid jobs. They are gravely concerned that a cost may be involved.
Many issues were raised and the Minister has received many representations. However, it is impossible to overestimate the depth of feeling among people with disabilities about this matter. I am struck by how wounded they feel by this approach. I understand the Minister's intentions but the approach is ill-advised. It is most unfortunate that the groups feel they were not heard when they put forward their case. The amendment was accepted as a compromise. It may not be ideal but it goes a long way towards satisfying people with disabilities and I ask the Minister to accept it.
This area is most in need of clarification. It has caused a great deal of confusion and concern. I agree with Deputy Keogh that many organisations are upset about the proposals in which they see different aspects. The Minister is trying to be as comprehensive as possible in the definition, but he is also trying to square the circle.
It is a difficult thing to do.
Two issues are involved which concern people with marked disabilities in terms of trying to ensure that they can be involved and not discriminated against. This has been done in various activities and in stressing the importance of providing employment for people with disabilities, given that approximately 80 per cent of them are unemployed. This group of people want to be regarded as part of the normal workforce. They want to be considered on the basis of the work they are capable of doing and they want a definition which relates to the work. These two matters areas are covered in the amendment put down by me and Deputy Mary Wallace, our spokesperson on disability which states: "'disability' means the impact on an individual of a duly recognised physical, sensory, psychological or mental impairment which substantially reduces their prospects of securing and retaining employment;"
It goes on to define the terms physical, sensory, psychological or mental impairment. We also have a dilemma in terms of finding a suitable amendment which meets all the needs. Deputy Keogh has taken a slightly different route. The Minister's definition on page 8, line 24, is straightforward and states that "disability means certain aspects covered in paragraphs (a) to (e), such as the total or partial loss of a person's bodily or mental functions and the presence in the body of organisms causing, or likely to cause, chronic disease or illness."
Our amendment reflects the views put forward by the various groups and people with disabilities who want the International Labour Organisation's definition included. They want the impact on an individual of a duly recognised physical, sensory, psychological or mental impairment taken into account and that this should be the main criterion. They are anxious that people are not medically assessed in detail, as the Minister's amendment would provide. ICTU proposed that wording and included the phrase "which affects or substantially reduces their prospects of securing, retaining and advancing in employment". Our amendment states "which substantially reduces their prospects".
The Minister's proposal will include a wide range of people and I presume it is based to a large extent on the approach in the American disabilities Act. However, the problem, as ICTU pointed out, is that this means anybody who goes for a job in future will be assessed under these criteria. This is the concern because it substantially widens the net for medical assessments which can be used to state that the person has a disability. One of the most objectionable elements is the phrase "the presence in the body of organisms causing, or likely to cause, chronic disease or illness". Many people go through life with such organisms but nobody knows it.
Paragraph (c) states "the malfunction, malformation or disfigurement. . .", while paragraph (d) states "a condition or malfunction which results in a person learning differently from a person without the condition. . ." Paragraph (e) states "a condition, illness or disease which affects a person's thought processes. . ." The Bill further states "shall be taken to include a disability which presently exists, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person".
We are discussing avoiding discrimination and I understand the Minister's intention that people shall not be discriminated against on the basis of something which is obvious or may be discovered in medical examinations prior to the offer of a job or advancement in a job. This is laudable but the difficulty raised by ICTU, the CPSU and others in that regard is the fear that it will lead to a situation where people are open to examination on conditions they had in the past. This will lead to people being open to examination on what they had in the past. The amendment states: "which presently exists, or which previously existed but no longer exists." A classic case which comes to mind is tuberculosis which could be classified as something which previously existed but no longer exists or the presence in the body of organisms causing or likely to cause chronic disease or illness. People will say many of these organisms lie dormant for years but can return and cause problems. I understand people's fears because over the years people who had tuberculosis were screened and excluded by State, semi-State and private bodies. Although they had been cured, it was believed the illness might recur.
Such issues are taken into consideration in relation to pensions schemes. I fully understand people expressing their fears so strongly. However, I realise that by including everything, the Minister is trying to ensure such people would not be discriminated against in future. That is a laudable approach from an academic viewpoint, but there is a practical problem. It could lead to medical examinations for everybody involved which would give rise to fear and concern. The Minister, like Members, received various submissions in this regard. I will not go through them in detail other than to say this issue has been raised by many groups and individuals and it is one which is the subject of much correspondence. People are genuinely concerned. The Progressive Democrats and Fianna Fáil tabled amendments to tease out these issues, to get clarification and to express people's fears and concerns. Will the Minister explain his position and take on board points raised?
I followed the discussion with interest. I understand the thrust of the amendments which seem to seek to distinguish between disability and impairment. I will be interested to hear the Minister's comments. I do not understand how anyone could interpret this as giving somebody the right to carry out widespread medical examinations. Surely, this only comes into operation if somebody is trying to prove they have been discriminated against on the grounds of a disability? I cannot see how this confers on an employer the right to have intrusive medical examinations carried out. Proving a disability would only arise if a person had been excluded for that reason. I do not understand how the legislation gives an employer this right and I hope the Minister can reassure us that it does not do so and it only becomes relevant if a case is being taken by a person who feels he has been discriminated against.
I was most impressed by the constructive contributions of interest groups and individuals on the question of a definition of disability for this Bill. When I first looked into the matter, I sought to achieve a very broad definition. My intention was to address prejudice and discrimination in respect of any aspect of disability. I was aware of definitions such as that in the Americans with Disability Act, 1990, which focused on capacity to perform work. On examining its application I found it was underpinned by extensive medical considerations in the form of regulatory definitions and guidelines. I was also struck by the potentially restrictive nature of concepts, such as "substantially limits one or more major life activities", which are central to the US Act.
Such a focus, which is replicated in the UK Disability Discrimination Act, 1995, is more clearly targeted for the protection of persons with more substantial disabilities. I agree that such persons should be covered by the Bill. However, I also wanted to ensure protection for persons with lesser disabilities or none who can also be subjected to unequal treatment in employment because of prejudicial attitudes relating to their condition or perceived condition. For this reason, I was attracted by the Australian definition which has been adopted in the Bill.
In view of some criticism of this definition I have been reviewing the best way forward on this issue. My officials and I have been exposed to extensive representations and recommendations. They forced us to re-evaluate our original approach and this was a sufficiently important issue to warrant such a review. I have been particularly assisted in reviewing the Bill's definition in recent consultations with the Disability Federation of Ireland and in the course of the Irish EU Presidency Conference on Disability which I hosted in Cork earlier this week. As a result I am more reassured that there is a growing appreciation for the merits of the definition I included in the Bill.
As I said to representatives of the Disability Federation of Ireland, the definition needed in the Bill should be one with maximum clarity which can be practically applied in the legal context. If I had been preparing a policy document or a sociological report, I might have opted for a different definition. I am, however, preparing legislation and I want it to be as effective and as inclusive as possible.
A number of concerns have been raised about the implications of applying the definition in the Bill. Essentially the concerns centre around the danger that such a definition will lead to widespread applications of medical assessments by employers. As I mentioned, the approach in other countries, such as the US and the UK, to a legal definition of disability and anti-discrimination legislation has not obviated the need for supplementary medical regulatory provisions. However, to clarify the real experience of applying the proposed definition my Department recently contacted the Australian authorities who have lived with this definition since 1992.
The experience of the Human Rights and Equal Opportunities Commission in Australia is that the definition used has been widely accepted and that it has not resulted in the introduction of inappropriate medical assessment. The aim of the Australian authorities was to allow, as mine does, for the widest possible inclusion under the Act. They deliberately avoided any attempt to introduce a definition which would lead to intrusive assessments. In the circumstances, I ask the Deputies who tabled the amendments to the definition in the Bill to reconsider and to facilitate the adoption of the Government's definition. I would be particularly anxious to avoid the potential difficulties that would ensue from a text which limits application of protection in this area to a duly recognised impairment which is further qualified by reference to its effect or potential to substantially reduce prospects of employment. All these concepts will undoubtedly create considerable scope for employers to challenge the eligibility of employees and others for protection under the Bill.
As I indicated at the outset, it is commendable to want to target protection under the Bill to persons whose impairment has a seriously disadvantageous impact on their employment prospects. However, I also want others whose impairment — past, present, future or assumed — has no impact on their capacity to undertake employment to enjoy protection against irrational prejudices.
References were made to the suggested form of amendment agreed by IBEC and ICTU. There was such a form which they agreed between them. However, when I met with ICTU and pointed out what I saw as deficiencies in their agreed form of amendment, ICTU agreed to look at the matter again. They did that and came back with what I may call ICTU mark II. This is the form of Deputy Keogh's actual amendment, not the original form they agreed with IBEC. Their mark II definition also forms the basis of Deputy Woods's amendment, for practical purposes.
There are deficiencies even in the mark II version. For example, let us look at the opening line of amendment No. 1 which states:
‘disability' means the impact on an individual of a duly recognised physical, sensory, psychological or mental impairment. . . . .
The point is made that my definition is medically based. I do not accept that but even if I did, what about Deputy Keogh's or Deputy Woods's amendments? If an employee or intending employee brings a claim, an employer may say he or she does not suffer from ‘a duly recognised physical or sensory impairment.' What kind of evidence would anybody then suggest could be brought forward to the tribunal to determine whether the condition of this applicant was a duly recognised one or not? This is in the area of medical assessment. It carries forward the notion of "substantially reduces their prospects".
My definition is much wider and does not have a requirement to qualify for the description that it "substantially reduces their prospects of securing" employment. If it moderately reduces them or reduces them slightly, they also come within its ambit.
That is the dilemma. That point must be taken cognisance of that the associations would not like this definition to be dealt with on a medical basis because disability is a social matter. I accept that. However, this Bill is not a social report or a policy statement but legislation whose intention is directed to one purpose — providing rights for the maximum number of people who I feel are reasonably entitled to its protection. I do not want to exclude from the Bill's protection people whom I feel are entitled to it in justice and in reason. That is precisely what the effect of adopting the medical type of definition or even the ICTU mark II definition would be, although I have to say that is a major improvement on the ICTU mark I definition which they agreed with IBEC.
I have met many disability organisations. Deputy Keogh said that all disability groups are unhappy with this definition and are pressing for an alternative medical definition such as the ILO one. However, the ILO definition would exclude a large raft of people from the protection of this Bill. I am sure that is not what Deputy Keogh's or Deputy Woods's intentions are but quite clearly that would be the effect of it.
I explained my objective to many of the associations and some of them saw the point of what I was trying to achieve. One of the major disability organisations, the Disability Federation of Ireland, has sent me a letter which I received this morning. The letter states:
20th November 1996.
Re: Employment Equality Bill, 1996.
Dear Minister,
I am writing to you in relation to our meeting last week when we discussed in detail certain aspects of the Employment Equality Bill and in particular the definition of disability for the purposes of the Bill.
I have now had an opportunity to discuss this issue with my colleagues and members of my board. We have considered very carefully your arguments in support of the definition as described in the Bill which we find to be persuasive. Given that we are all working together to enhance the employment opportunities of people with disabilities, we feel, on reflection, that we can now accept the definition as outlined in the Bill.
I have arranged to have a copy of this letter sent to the Social Affairs Committee for their information.
Yours sincerely,
Roger Acton, Chief Executive.
I am sure copies of that letter will be in the mail boxes of committee members. As the Disability Federation of Ireland — representing, as I understand it does, quite a number of constituent organisations for people with disabilities — now feels, on reflection, that it can accept my definition in the Bill, I ask Deputy Keogh and Deputy Woods to accept the definition in the Bill.
I thank the Minister for his explanation. I made these points to him in advance. While I appreciate the problem, the difficulty still remains. It depends on where this definition is to be used. If the definition is only to be used in situations where a person is, potentially or otherwise, being discriminated against, then the Minister's approach is understandable.
Is the definition to be used more widely, however? The Minister says the definition is for the purposes of this Bill. In so far as the Employment Equality Bill, 1996, is concerned, this is the definition which will be used in this context. Concerns were expressed by groups other than the Disability Federation of Ireland, including ICTU and IBEC.
ICTU was concerned that this definition would be used for employment generally. In that event, those who would not regard themselves as disabled would be regarded as such and one could not discriminate against them. Certain people might feel they do not have a disability but had something else such as a past infection but the Minister has provided in this Bill that they cannot be discriminated against, something we support. However, this is major legislation which redefines disability to include many who would not regard themselves as disabled. That is a difficulty which should be considered between now and Report Stage. Perhaps the Minister might know how this definition will be used. I accept he is acting positively to counter discrimination but we must look at the other side of the coin by which his definition of disability can be used against people by creating an environment in which the illnesses included in the definition are regarded as disabilities.
One can rarely point to those who discriminate. A board might interview a person with a previously cured illness who would not like if that were taken into account or for the board to say that it cannot discriminate against the person on those grounds but might do so on other grounds. That is the oldest trick in the world. We do not want to create a situation whereby the definition is misused by a company or business which feel they must determine whether a person has a disability to ensure they do not discriminate against them. That person may not wish to be regarded as disabled. Our job is to tease out where there may be problems. It would be simple for us to say to the Minister that he has the letter from the DFI, does not need to do any more homework and that we can finish early but that is not what we are here for.
Democratic Left has done that already.
It has gone to examine its responsibilities. It will probably go to the Supreme Court to sort it out. However, there is a concern and I understand what the Minister is trying to do. He cited the Australian definition and while we know it and America have gone this route, they are large societies and we are a small one. We do not want what we do to be used against people.
How will the definition of disability affect the issue of targeting? It might broaden the pool. At the moment, 80 per cent of disabled people are unemployed. If we bring in this definition. perhaps only 40 per cent of disabled people will be unemployed because many who come under it will find employment. Targeting is, therefore, a real issue because it arises from the definition. A formal legal definition will be used generally. It may be that we need this definition for discrimination and cannot do anything about how it is used otherwise. The issue of targeting and the extent to which this definition may be used by bodies, Departments or the private sector must be considered further and is something I would like to see done between now and Report Stage.
This is a very difficult issue. The Minister is anxious to reassure us and, in turn, all those with disabilities and the various representative groups on this issue. Until this morning I believed every group and individual shared my opinion. It is interesting that the Minister received a letter from the DFI. Why did they decide to agree to the Minister's definition? Did they feel they had to, or were they persuaded? My view has been shaped by the vehemence of the views expressed to me and I remain to be convinced.
Perhaps the Minister could explain why definition of the International Labour Organisation convention, which defines disability for employment purposes, was not followed? We ratified the convention in the mid-1980s and it defines disability in a functional as distinct from a medical sense. The thrust of the arguments put to me was that people with disabilities are not ill and they fear the way this section will be applied.
The CPSU have issued a document dated 20 November on the matter —The Observations on the Disability Aspects of the Employment Equality Bill. This is a difficult area on which to be convinced. People with disabilities have expressed their belief that the emphasis on the medical definition and the health status of an individual, rather than capability to do a job, is wrong. What is the federation’s reason for changing its mind? I know the Minister has been inundated with representations and that he and his officials did not succeed in convincing other agencies.
I received a large number of letters advocating use of the ILO definition. For the purposes of the ILO convention, the term "disabled person" meant an individual whose prospects of securing, retaining and advancing in suitable employment were substantially reduced as a result of a duly recognised physical or mental impairment.
Under this definition, the person's ability to work would have to be substantially reduced. However, under this Bill if a person's ability to work is quite reduced he will have a claim. Why should I exclude from the protection of this Bill a person whose physical or mental impairment is not substantial? If it is not substantial, they would not qualify under the ILO definition I am being asked to adopt.
The question of a duly recognised physical or mental impairment is a medical one. If it is disputed, who else but a doctor will or could say whether it is duly recognised? A disabled person in the ILO definition means an individual whose prospects for employment are substantially reduced as a result of a duly recognised physical or mental impairment. What about the situations covered in section 2(1), lines 37 to 39, where disability shall be taken to include a disability which presently exists, or which previously existed but no longer exists?
The example of TB, referred to by Deputy Woods is a good one. If a person had TB for 15 years, but is now fully recovered, he is in perfect health. An employer does not need to employ him as he can get someone who has never had TB. This person could not bring a claim under the ILO definition because he does not have a duly recognised physical or mental impairment.
I have also provided for imputation of illness in the Bill. It is not unknown for rumours to be spread that a person has AIDS so that when he applies for a job he is discriminated against by an employer. This person cannot bring a claim under the ILO definition as he does not have a duly recognised physical or mental impairment.
There is a category of criticism as regards my definition which I will accept if it is pointed out that a category of people who in justice, fairness and reason, should have the protection of the Bill do not have it in my definition. However, no source has made that criticism. On the contrary, the alternatives being offered to me would exclude large numbers of people who are under the protection of this Bill and are given rights by my definition. This Bill does not purport to be a social report and is not an analysis similar to those produced by State organisations. This is to carry out business and to provide protection to people who need it. That is its objective. I want to provide rights to people who need them. I am not in the business of reducing the rights provided for in the definition. If anybody shows me a category of people who should have protection and do not, I will certainly consider it.
We appreciate that the Minister is trying to cast the net as widely as possible from an anti-discrimination point of view. Will the Minister outline the present medical requirements for entry to the Civil Service?
I cannot answer that question offhand.
Perhaps the Minister's advisers will furnish the information. I am trying to look at the practicalities. What realities are we discussing? I do not doubt the theory by which the Minister wishes to proceed and his wish to establish rights and entitlements. However, I would like to see how it will work in practice. We are discussing practical matters. Perhaps the Minister could get the information on the current medical requirements for entry to the Civil Service. It is something we wish to examine and it must be readily available from the Civil Service Commission.
We are at cross purposes to some extent, yet in other respects we are not. The Minister referred to this when he said he is not talking about a social document. The ILO deals with social policy and tries to get the maximum number of employment opportunities for disadvantaged people. There are two separate agendae and we must be careful in examining how one impinges on the other and how one may be used in relation to the other. The Minister has explained that he wants to ensure the legislation provides the widest possible rights.
I doubt that we can get much further at this stage. The Minister said he has the letter from the DFI which acknowledges we are all working together to enhance people's employment opportunities. They also deal with the social side of the issue.
That is the objective of the Bill too. This is an employment Bill.
If the Minister accepts this definition and uses it for these purposes he will be dealing with much wider numbers. A larger number of people who are covered by this definition will be people with disabilities.
That is what I want.
That can have extensive practical implications. Many people who would not regard themselves as disabled will then be counted as people with disabilities——
That is the purpose of the Bill if they are discriminated against.
No, DFI is talking about the purpose of providing employment opportunities. We talk about quotas and positive action for people with disabilities. If positive action is based on this definition it will have a scatter-gun effect. People could claim entitlement to be within that group when they might have very minor disabilities, even disabilities they might have forgotten because this clause refers to an illness one might have had in the past. That in turn relates to whether this definition will be used for other purposes.
There is a separate provision dealing with positive action.
Yes.
A person without disability and in perfect health might be able to maintain a claim under this Bill. That is the intention in the particular circumstances.
The definition permits that.
Deliberately so.
I understand that.
The ICTU/IBEC mark one definition did not provide for it. It was only when I pointed out these matters that they came back with the mark two definition, which is a substantial improvement. However, it still has shortcomings. It would still exclude people who I want to include in the protection offered by the Bill.
The Minister has gone as far as he can. I hope he will provide information on the medical requirements for entry to the Civil Service. I presume they can be obtained quickly. However, it is a question which must be considered further between now and Report Stage and we will do that. I understand what the Minister is trying to do in casting the net as widely as possible. Our fear relates to the use of the definition in other respects and that fear has been expressed strongly by people outside the Oireachtas. They are concerned about the effects it will have on targeting——
They are advocating the ILO definition.
They are not.
I can show the Deputy dozens of standard letters I have received which advocate the ILO definition.
That is because they seek that orientation in the legislation. People have not fully understood that the Minister is, in effect, dropping the targeted approach. Everything they have seen thus far has been targeted, the targets have not been achieved and are far from being achieved. That is where the conflict arises. The Minister is approaching this matter from the theoretical position of ensuring the maximum number of people have rights and entitlements.
Correct.
It is possible that it is the best way to approach it. However, there is obviously a communication problem in that regard. There are potential dangers in targeting and in the use of the definition in other areas which the Minister will have to examine between now and Report Stage. I am also concerned about the indirect use of the definition. We will look at those matters before Report Stage.
We should make it clear when debating this section that nobody is suggesting that the Minister is not looking for the widest degree of protection for people with disability. That is not at issue. What is at issue is the way in which he is seeking to achieve it. There is a big difference. Notwithstanding the disability federation's late conversion, people——
It is not a conversion, it is an understanding of what I was doing.
The people and organisations who have spoken to me have said their concern is about the medical definition and the fact that it is a non-functional model. I would not get hung up on the ILO definition. It was not put to me that it was specifically what people wanted. They were concerned about the approach defined in that convention. This matter involves a difference of approach and people are concerned as to whether medical assessment will be retrospective. These fears are engendered by the approach in the Minister's definition. We are trying to find a way to allay people's concerns. The Minister stated that, on foot of communication from the Disability Federation, he believes those fears have been allayed.
We have debated this issue for a long period but I hope I am succeeding in communicating to the Minister the very real fears expressed by people with disabilities and the organisations that represent them. These people believe they are faced with a dilemma because, while they welcome the import of the Bill, they are concerned that it will not achieve what they hope. That would be a pity because it is not the Minister's intent that this should happen.
I do not understand how there can be a fear of general medical examinations. The only people who might require these examinations would be those whose impairment is not obvious and it would be to their benefit to undergo them. I do not understand how people could believe that this will apply to a broad sweep of medical examinations. I was amused by Deputy Woods's reference to the interview and examination. Married and single women, although protected by equality legislation, often face a range of interesting questions when attending interviews which are not often put to men. For example, they can be asked about child care arrangements, whether they live with their mother-in-law, etc.
I welcome the broad definition although the question of whether a person is disabled becomes interesting in that context. There is a category of people operating successfully in senior and other positions in society with various mental conditions. For example, these people may be taking long-term medication for depression. It would be a benefit to such individuals, their companies and society if their conditions could be discussed because this often places a major and secret burden on them. Many of these people are afraid that if they inform their colleagues at work about their condition they will be looked at askance and their promotional prospects might be affected. If an ethos of greater public knowledge of this problem develops, it would be healthy for society because people would have the protection of the broad definition framed by the Minister, whereas they might be obliged to undergo some sort of process under some of the narrower definitions. There seems to be a desire to separate a definition of disability from the descriptions of impairments but that seems difficult to achieve.
Deputy Flaherty has introduced a very interesting aspect of this issue.
I did not mean to do so.
This is the type of problem I am attempting to highlight. Deputy Flaherty referred to the gender discrimination faced by women at job interviews but what about the case of a woman seeking promotion? Consider a situation where a woman has broken through the glass ceiling, reached the upper levels of management and discovers she is pregnant. Members are aware that there is legislation which states there will not be discrimination on grounds of pregnancy, etc. However, Deputy Flaherty highlighted the reality of the practical problem because in areas above middle management people are involved in very responsible jobs. It is then that the whispering begins and colleagues state that the woman in question would not be able to carry out certain employment because she is about to have a baby. These are real problems and I am aware of instances where this type of situation occurred in the upper levels of management in certain companies.
One cannot put one's finger on this kind of bias. While we introduce legislation to protect people, we cannot prevent such bias being used behind closed doors. The broadening of the definition introduces a description of disability, however well-intentioned——
It is more than well-intentioned.
Yes, but we must be satisfied that a situation will not be created where people will be worse off. Deputy Flaherty referred to people whose impairment is not obvious, but many of these individuals, who have managed to adapt and work successfully in society, are being included under the broader definition. We would not want the good intentions in the Bill to place these people at a disadvantage.
Deputy Flaherty's comments were very perceptive and they go to the nub of the practical problem about which we are concerned. We want to ensure that this problem is dealt with but perhaps the question could be considered further before Report Stage.
Is the amendment being pressed?
I do not believe the Minister has taken on board the points about the function of the medical definition. I am concerned that we will let this opportunity slip and return to the matter on Report Stage. In that instance, we will not succeed in allaying the fears expressed by people with disability. Is the Minister prepared to consider the definition further or is he still engaged in discussions relating to this aspect of the Bill?
The debate on this issue is becoming repetitive. I am satisfied with the definition as it stands. I have considered the matter exhaustively and I take the point about medical definition and the social aspect involved. However, I explained that this is a document to confer rights, not a social report. As far as variation in the definition is concerned, if any Deputy puts it to me that I have left out of the definition any category of people who should, in fairness and justice, have protection I will consider an amendment on that account. However, I am not prepared to consider any amendment that will remove the protection of this Bill from people who are reasonably entitled to it. That is the thrust of amendments and suggestions that have been put to me, including those tabled. If I have left anybody out who should have protection, I will look at that but the criticism levelled at this definition has not been based on that. When I pointed out to some groups that their alternative proposals would have the effect of taking out large numbers of people who should be entitled to the protection of the Bill, they resiled from their previous position. That happened with the DFI and I have no hang ups about this. It would be easy for me to say that if the disability organisation wants this and as they are the people it is intended to protect, why not let them have it? However, it would be irresponsible on my part to do that because, for example, there are groups of people who do not have disabilities and are not represented by the associations which need the protection. I am giving them protection because it is fair that they should have it. I accept what Deputy Woods said and will reflect on this further if he wishes. I will consider it on Report Stage and if any alternative definition is submitted I give an undertaking to examine it carefully.
Amendment, by leave, withdrawn.
Amendment No. 2 not moved.
I move amendment No. 3:
In page 9, subsection (1), line 31, after "divorced" to insert ", cohabiting, annulled".
This amendment seeks to extend the definition of marital status to include "cohabiting" and "annulled." This was a concern expressed by the National Women's Council of Ireland and others. Will the Minister consider extending the remit of the Bill to include those definitions?
The definition of marital status in the Bill is a standard one which draws on legally recognised states. It would be inappropriate in this legislation to introduce a new status which does not have a similar legal base. I do not, therefore, propose to add cohabitation as a category of marital status. A person who cohabits is already covered as having a marital status by reference to the legally recognisable marital states — single, married, separated, divorced or widowed. I am satisfied that if the marriage is annulled the former parties to it are again single. In the circumstances, while I thank Deputy Keogh for her proposal, I regard the definition of marital status as it stands to be clear and comprehensive.
Is there a legal definition for "separated"? Is it necessary? What is the status of a separated person?
A person is living apart from his or her spouse.
That is a very clever answer, but it does not explain the legal definition of "separated." Is there a definition?
"Living apart" is contained in the Constitution and in the Family Law (Divorce) Bill, 1996, which was passed yesterday.
Is it intended that it will remain in legislation?
Yes. An application for a judicial separation is used and is defined in the Judicial Separation and Family Law Reform Act, 1989.
If we are proceeding with divorce legislation, will separation still continue to be part of our legal system?
Yes, notwithstanding that divorce has been introduced. It will still be possible to bring an application for a judicial separation.
With regard to what the Minister said about cohabitation and annulment being included among the definitions, is he satisfied that "partner" should also be included or does it require inclusion in terms of the protection in this legislation?
A partner is a description of a factual situation. Where two people are living as partners, one of them might be married or one of them might be single, they both might be single or they may be living as partners so "cohabitants" is the word used. "Partner" has a common interpretation. It means other things, including two people living together.
Amendment, by leave, withdrawn.
Amendment No. 6 is related to amendment No. 4 and both may be discussed together. Is that agreed? Agreed.
I move amendment No. 4:
In page 10, subsection (1), between lines 5 and 6, to insert the following definition:
"sexual orientation' includes heterosexuality, homosexuality, lesbianism, bisexuality and transvestism, but does not include any act which is prohibited by law,".
There is no definition of "sexual orientation" and I do not know if the Minister wants to define it specifically in the Bill. My definition includes certain activities which means that it can also include activities not specified. I do not know if I have gone too far by including transvestites but I do not know if that is a matter of "sexual orientation"per se. However, if it is they should have the benefit of the protection of the Bill. The reference to acts prohibited by law is aimed at matters such as paedophilia. I am trying to be precise about sexual definitions.
The question of providing a definition for "sexual orientation" was given early consideration when the Bill was being prepared. I thank Deputy Keogh for raising this issue before the committee. In the absence of a legal model in Irish law, I am reluctant to attempt such a definition. Defining this category would involve listing forms of sexual relations or behaviour and would involve judgment on what should be protected. In the circumstances I am not sure it is advisable to preclude the possibility of protection under the Bill for any type of sexual orientation in respect of employment generally.
The difficulty here is that the people are inclined to say that while it is generally accepted that the definition should include heterosexuals, homosexuals and lesbians, for example, it is needs to be clear in the Bill. I understand the Minister's problem as it is a question of where he stops when he tries to introduce detailed definitions. This point has been made to us. People do not know whether they are included and are prepared to be explicitly and expressly included.
The Minister said that he did not want people to be expressly excluded because they were not included and this is the difficulty. There is no other Irish law on which we can draw for experience. I am unclear whether transvestism. for instance, qualifies as sexual orientation. We should define sexual orientation and perhaps the Minister might consider the matter for Report Stage.
Is this the first time this term has been used in legislation?
I do not think there is a definition at present. The expression is used in the Prohibition of Incitement to Hatred Act, 1989, but there is no definition. There would be certain benefits in having a definition but perhaps also certain disadvantages. I will have a look at the matter between now and Report Stage.
Amendment, by leave, withdrawn.
Amendment No. 18 is consequential on amendment No. 5 and they may be taken together. Is that agreed? Agreed.
I move amendment No. 5:
In page 10, subsection (1), between lines 7 and 8, to insert the following definition:
"‘vocational training' shall be construed in accordance with section 12(2).".
This is a technical amendment to deal with a drafting omission which confined the definition of vocational training in section 12(2) of the Bill by inserting a definition of vocational training into section 2, thus broadening the interpretation of the provision in section 12.
Amendment agreed to.
Question proposed: "That section 2, as amended, stand part of the Bill."
A number of interested groups have queried whether adopted children should be included in the definition of "member of the family". I believe that adopted children as well as other children must be covered in the definition. I will examine the matter further and consider whether it may be necessary to propose an amendment on Report Stage to cover this point. If I consider it appropriate I will do so.
We look forward to the Minister's proposals in this regard on Report Stage. Has the Minister been able to get the information on the medical requirements for entry to the Civil Service? This matter is relevant to this section and I would not wish to be told later by the Chairman that it is not relevant to another section.
I am puzzled about the relevance of them. The Bill is not confined to the Civil Service. It applies to public and private sector employment. I have not the remotest idea of the medical requirements for entry to the Civil Service. Whatever they may be, this legislation will govern the situation and will have a relevance in so far as disabilities are concerned. The rights granted by this Bill will apply after it is enacted.
They are relevant as a practical example. Our difficulty is not with the theory because we all support rights for those with disabilities. The difficulties are with the practical application.
If the Deputy feels it might be helpful we can ask the Civil Service Commission for information. However, we may not get it immediately.
I did not think it would be that difficult to get information which is readily available in any Department. Communications have been an issue recently but if a Minister asks for such information it should be readily available.
We will ask for it.
The definition of pension rights refers only to occupational pensions. There is no mention of other occupational benefit schemes such as death in service benefit and income continuance plans. This should be stated clearly to avoid confusion. At present, employers generally see these benefits as being similar in nature and might regard them as being included.
The reason the definition is in the Bill is to exclude pension rights from the effect of the Bill. The pension aspects of equality will be dealt with by the Minister for Social Welfare in a separate legislative measure. For that reason they are not dealt with in this Bill. This Bill simply excludes it because it does not apply here.
Are death in service benefits and income continuance plans also being excluded?
Death in service benefits and other entitlements will be part of this Bill. They are encompassed by the definition of pay.
Questions have been raised about the definition of "family status" because it did not extend to elder care. Will the Minister clarify the matter?
Elder care is included. "Family status" is defined as responsibility
(a) as a parent or as a person in loco parentisin relation to a person under the age of 18, or
(b) as a parent or the resident primary carer in relation to a person of or over that age with a disability which is of such nature as to give rise to the need for care or support on a continuing, regular or frequent basis.
It is covered under the second element of the definition.
The Minister has referred to the EEA and the consolidation of the legislation.
The Equal Status Bill will deal with the practicalities.
Will the Equal Status Bill define more clearly the role of the new equality agency?
The position of the new agency will be dealt with in that Bill.
What about the consolidation of the legislation?
It will be tidied up to some extent but I cannot say there will be full consolidation. I imagine at a future date the employment equality and equal treatment provisions may be usefully consolidated. The equal status Bill will not be a totally consolidating measure either but it will include tidying up measures.
There is a great deal of concern about the future role of the Employment Equality Agency with regard to gender equity and fears of a diminution of that role, as well as the funding and expertise of the agency. From my reading of the intent for the new equality agency, it will be very difficult to clearly define the role. I am sure the Minister has heard that the Joint Committee on Women's Rights is preparing a report and I ask him to consider it.
Sitting suspended at 1.35 p.m. and resumed at 2.30 p.m.
A question has been raised about section 2(1) which defines a contract of employment. It has been suggested that it defines it narrowly to mean a "contract of service or apprenticeship or any other contract whereby an individual agrees with a person carrying on the business of an employment agency to do or perform personally any work or service for another person". This is considered a narrow definition because it does not cover someone who is employed under contract to do or perform a work or service for another person where there is no employment agency involved. This leaves a large gap in relation to other workers such as the self-employed, independent contractors or people working in the home. Could the Minister give us an explanation on the choice of the contract of employment?
I am not quite clear about the point the Deputy is making.
I am saying that because a contract of employment is defined as a "contract of service or apprenticeship" it excludes contracts for the self-employed or for someone providing a service in the home. The section states that contract of employment means, subject to subsection (3) —
"contract of service or apprenticeship or any other contract whereby an individual agrees with the person carrying on the business of an employment agency within the meaning of the Employment Agency Act, 1971, to do or perform personally any work or service for another person (whether or not that other person is a party to the contract)."
It only relates to carrying out a contract in the business of an employment agency or a contract of service. It does not include services provided in the home or work by independent contractors where there is no employment agency involved. It is too narrow a definition.
I do not think it is too narrow a definition. I think the definition is right. This is an Employment Equality Bill and it does not purport to deal with the supply of goods and services. That is the kind of function appropriate to an equal status Bill and will be dealt with in such a Bill when it is produced.
We are talking about contracts of employment. The question of discrimination does not arise with a self-employed person. Perhaps the Deputy is talking about discrimination in the awarding of a contract. In other words that one discriminates against a person who quotes for a job rather than a person who is being employed. That very important issue has to be dealt with but not in this Bill because it would not logically come within the ambit of an employment Bill but rather of a supply of services Bill.
I am not clear about what Deputy Woods means when he talks about "in the home". Is contract of service in the home covered by this Bill? It is not excluded from it. If one has a contract of service with a person employed as a gardener or cleaner that contract would be covered by this Bill whether it is in or out of the home. If one was placing a contract with a contract cleaning firm, for instance, that would be, and is intended to be, outside the ambit of this Bill.
The Bill states that a contract of employment means a contract of service. That is normally taken to be the full rate PRSI contract for a worker. A contract for service is taken to be different and includes self-employed people also. This is in terms of the definition of the self-employed and employees. This Bill covers a contract of service which would include a contract in which services are provided. The Minister is saying that the reason the contract for service is not covered is because it will be dealt with in the other Bill.
The other Bill will specifically prohibit discrimination in the context of the supply of goods and services. The contract for services would come within that ambit. This is an employment Bill and it covers a contract of service whether inside or outside the home. There may be a specific exception but I cannot think of any. In general terms the fact that it is in the home would not exclude it from this Bill.
Most of the contracts would probably be contracts for service and that brings them into services provided.
Not necessarily but a lot of them would be. In the case of a painter hired to decorate one's house it would depend on the nature of the deal with that person. If one was paying him on a fixed rate per week it amounted to telling him what to do, when and how and that would be a contract of service. On the other hand if one called in a person and asked for a quotation for painting a house and he gave an estimate of £1,000 or whatever, that would be an independent contractor, a fixed price for the job. That would not and is not intended to be covered by this Bill. It would be covered by the equal status Bill in that one would not be able to discriminate against a person one was going to place on contract on the grounds that they were black or of a particular religion. If it is defined in that way it will exclude contracts, for instance, for self employed people, or for a person providing a service in the home.
It states in the section that a contract of employment means, subject to subsection (3), a contract of service or apprenticeship or any other contract whereby an individual agrees with the person carrying on the business of an employment agency within the meaning of the employment agency Act, to do or perform personally any work or service for another person whether or not that other person is a party to the contract. It only relates to carrying out a contract on the business of an employment agency or a contract of service. It does not include services provided in the home or for independent contractors in which there is no employment agency involved.
The Deputy is saying that it is too narrow.
Yes, the definition is too narrow.
I do not think it is too narrow a definition. The definition is right. This is an Employment Equality Bill. It does not purport to deal with the supply of goods and services. That kind of function is appropriate to an equal status Bill and will be dealt with in that Bill when introduced. We are talking here about contracts of employment. The question of discrimination does not arise in the case of a self employed person.
Discrimination in the giving of a contract to somebody — perhaps that is the kind of situation Deputy Woods has in mind — where you discriminate against a person who quotes for a job rather than the person you are employing is a very important issue and has to be dealt with, but not in this Bill. It would logically come within the ambit of a supply of services Bill. That kind of situation may well be covered in the equal status Bill but it would not be logical to cover it in this Bill.
I am not quite clear what Deputy Woods means when he talks about contracts in the home. A contract of service, whether it is in the home or out of the home, would be protected by this Bill. However, if you were placing a contract, let us say with a contract cleaning firm or something like that, that is intended to be outside the ambit of this Bill.
The definition says a contract of employment means a contract of service. A contract of service is normally taken to be the full rate PRSI contract for a worker. A contract for service is taken to be different and includes self employed people as well in terms of the definition of self employed and employee. This provision covers a contract of service, which would include a contract in which services are provided. The Minister is saying that the contract for service would be dealt with in the other Bill. The other Bill is specifically to prohibit discrimination in the context of the supply of goods and services. A contract for services would come within that ambit. This is an employment Bill and it covers a contract of service. Whether it is in the home or out of the home would not make any difference. A contract of service in the home would be covered by this Bill except in so far as there may be any specific exception. I cannot think of any but it may be there but in general terms the fact that the contract is in the home would not exclude it from this Bill.
Most of the contracts in that situation would be contracts for service.
Not necessarily, although many would be. For instance, if you got a painter to paint your house, it would depend on the nature of the deal you made with him or her. If you were paying him or her a certain amount per week, in other words he or she was working for you as a painter in your house at a fixed wage per week so that you were telling him or her what to do when, how and so on, that would be a contract of service. On the other hand, if you called in a person and asked him or her how much it would be to paint your house, and that person gave you an estimate, such an arrangement would not be covered by this Bill. It would be covered by the equal status Bill in the sense that you would not be able to discriminate against a person you were going to place a contract with on the grounds that they were black or of a particular religion or whatever. That would be a contract for the supply of a service rather than of services.
That is the essential difference between a contract of service and a contract for services.
In law there can be difficult grey areas as to when a contract is a contract for services or a contract of service. Sometimes it takes a court decision to determine which it is. Some cases are clear, others are not so clear. One of the major tests is whether the person who places the contract or gives the job retains control not only of what is to be done but how it is to be done. That is one factor that motivates a court towards fixing the divide between the two kinds of situations. Essentially we do not intend in this Bill to deal with contracts for services. That will be a matter for the equal status Bill. We are only talking about contracts of service here, contracts of employment.
This was one of the issues that was raised and the Minister has clarified it. Has the Minister received the material yet?
I understand that material from the Civil Service Commission is on its way. I have no objection to coming back to Deputy Woods's point about that when the material reaches here, if that would be helpful.
Question put and agreed to.
Sections 3 and 4 agreed to.