Dáil Éireann - Volume 470 - 22 October, 1996
Employment Equality Bill, 1996: Second Stage.
Minister for Equality and Law Reform (Mr. Taylor) Mervyn Taylor
Minister for Equality and Law Reform (Mr. Taylor): I move: “That the Bill be now read a Second Time.”
This Bill is the most significant contribution to the fight against discrimination in employment since the first Employment Equality Act of 20 years ago. It fulfils our commitment to introduce broad ranging legislation to outlaw discrimination in employment on the grounds of gender, marital and family status, sexual orientation, religion, age, disability, race and membership of the travelling community. The scope of the Bill is comprehensive and deals with all employment related areas from vocational training to access to employment and employment conditions generally, including training, work experience and promotion. It draws on developments in working towards equality over the past two decades and will, when enacted, give Ireland one of the most modern equality codes in Europe.
The Bill responds to the radical change that has been taking place and continues to take place in society. Our society which until recently had adopted a relatively closed and homogeneous outlook is rapidly taking on a new open, pluralist and strongly European identity. I am very much aware that this new identity is increasingly evident in working life.
The world of work is no longer peopled predominantly by married men with full time permanent jobs. The emerging work environment includes many employment options, from part time employment to job sharing and teleworking. It is peopled by men and women, some of whom are the sole breadwinners, while others contribute, in equal measure with a partner, to the economic support of home and family. Increasingly, people with disabilities are demanding their right to a full role in economic life, including a place in this more flexible world of work. A more open approach to issues of sexual orientation, changes in family status and an increase in ethnic and religious diversity leave members of some of our minority groups more visible, and perhaps vulnerable, in the workplace. The fact that few people  are guaranteed a job for life, coupled with the high levels of unemployment, means that more older people than ever before are seeking work.
In this emerging labour market, employment equality must be seen as an essential element in labour protection legislation. Discrimination is not a theoretical problem. For too many it is an unacceptable reality. Take discrimination on the grounds of age. A brief scan of the situations vacant columns in any daily newspaper provides ample evidence of outright discrimination. Labour force statistics show that older workers, once unemployed, are likely to remain unemployed for longer than their younger counterparts. The Report of the Task Force on Long-term Unemployment shows that alongside the increasing incidence of long-term unemployment among older workers, other motivational factors are at work. A study in Tallaght by Ronayne and Creedon in 1992 reported that two out of three people who were long-term unemployed and over the age of 45 expect never to get a job again. The perceptions of these individuals are confirmed by the reality. Statistics show that a man aged over 45 and two years unemployed has only one chance in ten of being re-employed.
Discrimination on the grounds of disability is unfortunately widespread. An official report, prepared for the European Commission in 1991, represented the number of people with disabilities in Ireland as 240,000, or 7 per cent of the population. The National Rehabilitation Board, together with other agencies, has been working over the years to ensure the integration of people with disabilities into employment. An EC labour force survey in 1989 indicated that “the chances of someone with a disability being unemployed are significantly higher than someone without a disability”.
It is a common truth that success in today's internationally competitive business environment involves utilising the talents of all employees, without regard to ability-neutral characteristics such as sex, disability or sexual orientation. Employers and managers who overlook able employees because of traditional prejudices are guilty both of injustice and waste in deploying the human resources available to them. They may even jeopardise the viability of their enterprise, because there is nothing more certain than that there are other enterprises which have succeeded in tapping the energies and abilities of their employees. I am convinced that we must relinquish outmoded preferences that perpetuate narrow discriminatory practices if our society is to prosper in the emerging economic pluralism and if we are to work towards true social equity.
Apart from any economic imperative there is an obligation on all of us, Government, employers and trade unions, to work towards the development of social justice. Equality is a fundamental human right, which is especially important in the economic sphere. Individuals in society have a basic right to seek and secure gainful  employment and to advance in that employment without being discriminated against because of personal characteristics unconnected with work performance.
Discrimination in employment often weighs disproportionately on those who are already marginalised in our society, such as members of the travelling community, older people and people with disabilities. Employment equality legislation is one essential tool to help redress disadvantage. In addition, non-legislative measures, both State-sponsored and voluntary, also have a role. Reviews of progress to date in relation to gender equality illustrate the limitations, as well as the importance, of legislative action.
Employment equality legislation for women has been on the Statute Book for 20 years. In the summer of 1974 the then Minister for Labour, Michael O'Leary, presented the first employment equality legislation ever before this House. Opening the Second Stage debate, he stated that “much needs to be done to improve the status of women in employment”. It is disquieting to note that, despite some significant achievements in the intervening 20 years, this statement is also true today. The position of women has advanced, but substantial equality in employment for the vast majority of women remains an elusive goal.
There has been progress. In 1974 two women Senators contributed to the debate on that first employment equality legislation. One of them, Mary Robinson, is today President of Ireland and the other, Evelyn Owens, holds the chair of the Labour Court. Both positions would have been regarded clearly as men's jobs 20 years ago. Attitudes in Ireland have progressed but we need still more progress.
Across the EU today women earn substantially less than men. In Ireland the average hourly earnings of women who work in manufacturing industry are only 70 per cent of those earned by their male counterparts. The situation outside manufacturing is not much better. An ESRI study published in 1994 entitled “Male-Female Wage Differentials: Analysis and Policy Issues” examined the earnings of men and women workers in all sectors. The study found that women's earnings were only 80 per cent of those of men. The study also found that half of the 20 per cent difference could be attributed to factors such as skill, hours worked, length of service and experience. It is quite likely that the remaining 10 per cent of the discrepancy is the result of pay discrimination.
Like other European countries, Ireland has experienced a strong increase in labour market growth. Employment in Ireland has grown by 8.5 per cent in the period 1991 to 1995. The increase in female employment has been even higher, of the order of 20 per cent. There are more jobs for women, but growth in jobs has been concentrated in low paid, part-time and other atypical work and it is to these jobs that many of the new entrants to the workforce, primarily women, are recruited.  So far as gender equality is concerned, we are at a crossroads. The days are long past when it is socially or politically acceptable to justify unequal treatment by reference to differences in biological or social function. Acceptance of the principle of equality, however, does not appear to have been matched with practical action to achieve it.
I know from meeting the two sides of industry, employers and trade unions, whether in the public or private sectors, that there is support for the principle of employment equality. In almost all cases, these organisations fall short of achieving equality of opportunities in practice. There is need for continued vigilance by women, their representative organisations, employers and State agencies to ensure that acceptance of the principle of equality is matched by a real will to eliminate discrimination.
The number of women in key decision-making roles in our public and private organisations is conspicuously low. Women are under-represented at board level in our major manufacturing and industrial concerns and on the boards of our service and financial institutions. Below boardroom level, the world of work is segregated both vertically and horizontally with men occupying the majority of management, professional and supervisory positions and women by and large responsible for the delivery of routine clerical and support services. Women are also segregated in the low paid sectors of the economy such as the clothing, assembly and services sectors.
We all know that the issues involved in the development of full gender equality at work are complex and, like most complex issues, can only be addressed over time and in response to a broad-based programme. For my part, I have taken steps to facilitate the reconciliation of work and family life through the Maternity Protection Act, 1994 and the Adoptive Leave Act, 1995. I have supported adoption of the Directive on Parental Leave at EU level. The transposition into Irish law of this directive can be expected greatly to ease the child rearing burden for many new working parents. Allied to these developments, facilities for child care support for working parents are being promoted through a pilot scheme for disadvantaged areas funded by my Department.
To broaden the decision making role of women, I have moved to ensure an increase in the number of women on State boards. In 1992 only 15 per cent of positions on State boards were held by women. In 1993 the Government, on my proposal, decided to work towards a target of a minimum 40 per cent representation level for women on State boards. By July last 26 per cent of all members of State boards were women.
Trade unions and employer interests have a serious obligation to assist in the achievement of gender equality in the workplace. It would be good if employers seized the occasion of this Bill to audit their workplaces and put in place targets to ensure the removal of any remaining barriers  to equal opportunities. I hope that some employers will take the opportunity afforded for the first time by this Bill to introduce schemes of positive action, geared to help eliminate existing inequalities that may affect their employees of either sex. Trade unions must intensify efforts to help women, collectively and individually, to achieve equal pay and equal treatment. I am confident this Bill will give the issue of equality in the workplace a considerably greater profile and, following its enactment, I look forward to an increasingly active role being taken by more and more individual women in defending and advancing their own interests and rights in the workplace, either in the trade union movement or in other ways.
In developing this Bill to cover the new discriminatory grounds, I have had regard to the individual rights-based approach in existing gender employment equality legislation. I have also taken note of UK racial equality legislation and the various approaches adopted to deal with discrimination in other EU member states, in Australia and in the United States. The Australian model, in particular, has proved a fruitful source of inspiration.
In contrast, the gender equality provisions in Part III of the Bill have been tightly drawn in accordance with the requirements of EU law. The Bill transposes into Irish law the Equal Pay and Equal Treatment Directives, following repeal in the Bill of the substantive provisions of the 1974 and 1977 equality Acts. The Bill also meets Irish obligations with regard to equal pay under Article 119 of the Treaty of Rome and builds on the substantial body of case law that has been handed down by the European Court of Justice in the past 20 years.
I would now like to outline to the House some of the main features of the Bill. The Bill is divided into six parts as follows: Part I contains standard and technical provisions; Part II sets out the prohibited discriminatory grounds and establishes the scope of the Bill; Part III deals with discrimination on ground of gender and gives effect to EU law in this area; Part IV deals with discrimination on grounds other than gender, namely marital status, family status, sexual orientation, religion, age, disability, race and membership of the travelling community; Part V provides means of redress and compensation for persons who may have suffered discrimination; Part VI gives new powers to the Equality Authority which will replace the present Employment Equality Agency.
Part I of the Bill, comprising sections 1 to 5, provides for the powers to make orders and regulations in section 3, a provision in relation to expenses in section 4, repeal of the Anti-Discrimination (Pay) Act, 1974, and the substantive provisions of the Employment Equality Act, 1977 in section 5.
Section 2 contains the necessary definitions. Some definitions which should be noted are the definition of advertisement which includes every  form of advertisement whether to the public or not and whether in a newspaper or any other publication, on television or radio or by display of a notice or by any other means; the definition of contract of employment which covers all employees in both the public and private sectors as well workers employed through employment agencies — this broad definition of contract of employment is in line with that contained in recent labour legislation. Other definitions are the definition of disability which is broad enough to give protection from discrimination to all people with a disability; the definition of family status which encompasses both care of the elderly and child care responsibilities; the definition of remuneration which includes any consideration in cash or in kind which an employee receives, directly or indirectly, from the employer in respect of employment. Pension rights are excluded from this provision and my colleague, the Minister for Social Welfare, will bring forward any legislation necessary to ensure discharge of our obligations under Article 119 of the Treaty of the European Community and the various equality directives, including the Equal Pay Directive. I understand he will deal also with equal treatment in pensions on a wide range of other grounds in an amendment to the Pensions Act. 1990.
Part II comprises sections 6 to 17 of the Bill. Section 6 sets out the grounds on which discrimination is prohibited in the Bill. They are gender, marital status, family status, sexual orientation, religion, age, disability, race and membership of the travelling community. The scope of the Bill is also established in this Part. Section 8 outlaws discrimination in relation to access to employment, conditions of employment, training or experience, promotion or regarding or classification of posts. Section 10 prohibits the publication or display of discriminatory job advertisements. Section 11 prohibits discrimination by employment agencies. Section 12 prohibits discrimination by providers of vocational training. Section 13 prohibits discrimination by trade unions, employer organisations, professional bodies, trade associations and by any body which controls entry to or the carrying on of a profession, vocation or occupation. The procurement or attempted procurement of discrimination is prohibited by section 14. The extent of the liability of an employer or any other person for actions of employees and other agents is set out in section 15.
Other provisions in this part are the definition of like work; general exclusions form the provisions of the Bill where a person is unwilling, unsuitable or unable to perform the duties of the post in section 16, and where acts are done in compliance with statutory requirements in section 17, and the making null and void of provisions in collective agreements that are discriminatory in section 9.
 Part III, comprising sections 18 to 27, deals with discrimination on the gender ground and gives effect to EU law in this area. Sections 19 and 20 provide an entitlement to men and women to equal remuneration in respect of like work where both are employed by the same or an associated employer. Discrimination in relation to other conditions of employment are prohibited in sections 21 and 22 of the Bill. Section 23 contains a definition of sexual harassment and explicitly provides that sexual harassment amounts to discrimination. Section 24 allows for positive action to eliminate the effects of past discrimination. It is a broadly couched provision and may be interpreted to include all forms of positive action, subject only to any limitation imposed by European Court of Justice case law.
Sections 25 to 27 allow exemptions from the principle of equal treatment. These exemptions include an exemption for the purposes of authenticity in entertainment; an exemption for certain jobs abroad; an exemption for special advantageous treatment of women in connection with pregnancy, maternity and adoption; an exemption for personal services, such as for the care of an elderly or incapacitated person. There are limited exemptions for the Garda Síochána and the prison service for purposes related to privacy and decency; the control of individuals and riot situations; and for gender-based height requirements.
Part IV, consisting of sections 28 to 37, prohibits discrimination on any of the following grounds — marital status, family status, sexual orientation, religion, age, disability, race and membership of the travelling community. Sections 29 to 31 provide for equal pay for like work and for the prohibition of discrimination in relation to other conditions of employment. Section 32 outlaws harassment in employment, on the basis of each of the discriminatory grounds set out in this Part. Section 33 allows positive action in favour of people with disabilities, people above the age of 50 and members of the travelling community.
Section 34 allows for the retention by employees of certain family and seniority-related benefits that would otherwise be made unlawful under the Bill. It allows for the continued fixing of retirement ages and for the phasing out of agerelated pay. The section also permits the setting of a maximum retirement age, on training-related cost grounds, and for an exemption from the terms of the Bill where there is clear actuarial or other evidence of significantly increased costs for the employer.
Section 35 is focused primarily to require an employer to make special provision for a person with a disability, unless it can be shown that such provision would cause the employer undue hardship. Section 36 allows for the continued application of residency, citizenship and Irish language proficiency requirements in the public service and establishes criteria for the setting of educational and other qualifications.
 Section 37 allows exemptions from the principle of equal treatment. The exemptions include exemptions for religious, educational and medical institutions run by religious bodies; an exemption for the purposes of authenticity in entertainment; an exemption for jobs in circumstances abroad where people of a particular religion could not reasonably be expected to operate effectively; an exemption for employment in a private household; and an exemption for the security forces on the age and disability ground.
Part V, consisting of sections 38 to 68, deals with procedures for resolving disputes in relation to entitlements under the Bill. In an effort to assist in the speedy and informal resolution of disputes, section 42 allows for binding mediation where the Director of Equality Investigations or the Labour Court considers that the dispute could be resolved in this way and the parties to the dispute do not object to such a course of action.
Section 41 provides that a person who considers that she or he has been discriminated against, victimised or has not received equal remuneration may in the first instance refer the matter to the Director of Equality Investigations, with provision for an appeal to the Labour Court. In the case of a dismissal, the case would be referred directly to the Labour Court, with provision for an appeal to the Circuit Court (sections 41 and 54). Where a case is referred to the director of Equality Investigations or the Labour Court, the director or the court may, in accordance with section 46, make an order for equal remuneration or equal treatment. In addition, the director or the court may order an employer to pay up to three years' arrears of remuneration or to order compensation for other acts of discrimination or victimisation up to a maximum of 104 weeks' remuneration. In a case where the person concerned was not in receipt of remuneration, there is provision for an order for compensation up to a maximum of £10,000. In a case involving the dismissal of an employee, the Labour Court may also order reinstatement or re-engagement of the employee, if that is considered appropriate.
Arising from recent European Court of Justice case law, I have provided means of redress without limit on the amount of compensation in gender equality cases. A person who may have been discriminated against on this ground may opt to seek redress through the Circuit Court. In such a case, the only limit on the amount of compensation or arrears of remuneration which may be ordered, is a six-years' time limit on the backdating of any compensation or arrears of remuneration — section 46(3). This limit on backdating is the maximum such limit enshrined in the generally applicable Statute of Limitations.
Sections 40 and 45 provide a right to seek information for all persons who may have been discriminated against and set out the consequences for an employer of failure to supply such information.
Sections 58 to 61 give strong investigative powers to the Director of Equality Investigations and  to the Labour Court to enter premises, to obtain relevant information, through interview or otherwise, and to ensure the imposition of sanctions in the event of failure or refusal by persons to co-operate with an investigation.
Under section 49, the Equality Authority is empowered to refer disputes to the Director of Equality Investigations. The Authority has the sole right to initiate proceedings in cases of discriminatory advertisements, including power to seek an injunction to prevent the filling of a job advertised in a discriminatory manner. The Authority may also refer a case to the Director of Equality Investigations on behalf of an individual where it would not be reasonable to expect an individual to refer the case, for example because of its complexity or because of the individual's fear of victimisation. The Authority may also seek an injunction in respect of persistent discrimination.
Sections 50 and 51 empower the Authority, or a person affected by a collective agreement, to refer the agreement to the Director of Equality Investigations, or on appeal to the Labour Court, where it is considered that the agreement contains a discriminatory term or does not provide for equal remuneration. The purpose of a referral or appeal under these sections will be to identify which provisions, if any, of a collective agreement are null and void, and, where appropriate, to suggest how alternative provisions might be devised.
Sections 55 to 57 allow a person who has been awarded compensation under the Bill to enforce the award through the Circuit Court, if the employer fails to take payment within a specified period. Sections 62 to 65 deal with offences under the Bill and with certain incidental provisions.
Part VI of the Bill, consisting of sections 69 to 73, is concerned with the Authority. Section 69 gives new powers to the Authority to prepare codes of practice that will have statutory recognition. Sections 70 and 71 give a new statutory role to the Authority to carry out equality reviews and devise action plans. Sections 72 and 73 contain technical amendments to the provisions in the 1977 Act in relation to the Authority necessitated by the introduction of this Bill.
I am committed to the implementation of a comprehensive programme to advance equality through a broad range of actions. The Employment Equality Bill is a central element in that programme and an essential step in the process towards the elimination of discrimination.
Deputies will have noted that some sections of the Bill are particularly complex and difficult. However, I will keep an open mind on possible constructive suggestions for improvement, bearing in mind submissions received from interest groups and others, and particularly the contributions of Deputies in the House.
I commend the Bill to the House.
Dr. Woods Dr. Woods
Dr. Woods: We welcome the Employment Equality Bill but we have serious reservations about some of the Government's proposals and  its deliberate omissions. As drafted, the Bill is cumbersome, legalistic and complex. The Minister admitted the complexity of the Bill in his final remarks. Practitioners will find it difficult compared with present practices which are simpler and more user friendly. With 73 sections and deep concerns being expressed about many of them, the Bill will require substantial amendment on Committee Stage if it is to fulfil its promise in the fight against discrimination in both private and public sector employment.
I was disappointed that there was no explanatory memorandum with the Bill. That was quite a disadvantage for everybody, given the complexity of the legislation and the number of sections. A brief guide was distributed subsequently but it was brief, did not deal with the sections in great detail and was not particularly helpful in analysing the Bill. It is vital that Bills which are large and complex should include an explanatory memorandum to ensure that people know exactly what the Government has in mind.
Mr. Taylor Mr. Taylor
Mr. Taylor: It has now been produced. I am sorry for the delay.
Dr. Woods Dr. Woods
Dr. Woods: Fianna Fáil is firmly committed to the elimination of inequality for all those who suffer from disabilities, disadvantage or discrimination in society. This important Bill, which began its life in the Fianna Fáil-Labour Programme for a Partnership Government, 1993-7, was to be a major step in the fight against discrimination and inequality in the area of employment. It was to fulfil a long-standing commitment made in successive national programmes to update our employment equality legislation on sex and marital status and to extend it to cover discrimination and employment on grounds of age, disability, family status, race, religion, membership of the travelling community and sexual orientation.
The Bill addresses each of these areas but, in many instances, it fails to take decisive action to break out of fixed and stereotyped mind sets and give the decisive leadership we need in tackling exclusion as we approach the new millennium. Instead of the bold and imaginative steps which people need from their leaders at this critical time we are presented with the confused and uncertain compromises of a divided rainbow coalition.
I welcome the Bill's extension of the scope of equality legislation to provide protection for people who were discriminated against on grounds other than gender or marital status. However, I am concerned the Bill will reduce the existing level of protection under the Employment Equality Act, 1977. The type of discrimination that has proved most difficult to eradicate is indirect discrimination. This is not the obvious and clear-cut discrimination that occurs when women are, for example, refused access to particular categories of jobs or promotion.
 Indirect discrimination occurs when an employer imposes a requirement that seems neutral but which is harder for women to satisfy than men, for example, the minimum height requirement to which the Minister referred. That sets the bar higher than many women can reach and can discriminate against women. Under existing legislation an employer can only impose such a requirement when it is absolutely essential for the job in question. This Bill proposes to allow such requirements if they can be objectively justified by an employer. The Minister will say that such a provision is the European standard, but it is a lower standard than the Irish one. In effect, the Bill lowers the present standard in Irish law. After nearly 20 years of equality legislation this would be a serious retrograde step.
The Bill will be a disappointment for people with disabilities. It fails to address the key employment issues which confront them. More than 80 per cent of people with disabilities are unemployed. This is a national disgrace and a scandal. Now is the time to take positive steps to redress this awful discrimination and to face down the begrudgers in our society, many of whom are doing well from Ireland's progress and prosperity. Now is the time to take a bold and progressive step to remove discrimination and to help people with disabilities to overcome their exclusion from employment. In this context, Fianna Fáil will put down an amendment to provide that the 3 per cent quota which already applies in the public service will be extended to the private sector. The implementation of the quota will be discussed with the social partners but within a time limit. It is disappointing that the Government has not taken this opportunity to extend the quota to the private sector. Members of the House have spoken often enough about the need for it. This is legislation of major importance for the future and this is the time to do it.
Deep concern has also been expressed that the medical definition of disability adopted by the rainbow coalition will lead to medical assessments for all disabled people seeking employment. This approach is contrary to the principles of non-discrimination and will perpetuate discrimination against people with disabilities in employment. It uses a medical definition of disability rather than an employment focused one. It has caused widespread concern since it effectively covers the entire workforce. It will also undermine existing agreements and codes of practice, introduced after years of practical experience, which are currently working and being implemented very well. Those who took the initiative in introducing and adhering to those codes of practice are disappointed with the proposals in the Bill. Why did we not build on their experience and on the codes of practice?
The Government is also introducing new provisions through which employers may claim exemption from the requirements of the legislation on the grounds of undue hardship. The  emphasis on undue hardship in the provision of facilities and other arrangements for people with disabilities runs contrary to the concept of reasonable accommodation which has wide support. Most recently, in report No. 10 of the National Economic and Social Forum on equality proofing issues, this approach is seen by many to be more positive and preferable.
The Minister should scrap the medical model of disability. It is dangerous and wrong and Fianna Fáil opposes it. It will affect every member of the workforce. It has been widely criticised because it focuses on the health of a worker rather than on his or her ability to do the job. Second, it will lead to the introduction of medical assessments for all people seeking employment, even where they have no bearing on their ability to perform. Third, it will perpetuate and extend discrimination against people with disabilities, making the situation even worse for them. Fourth, it will cover everybody because it includes (a) the absence in the body of organisms causing or likely to cause chronic disease or illness and (b) 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.
These insidious clauses could and will be used to exclude from appointment, training and promotion people who have had an illness of almost any kind, even though they may be fully recovered. A former tuberculosis patient, for example, will be seen to have a disability which previously existed or an organism in the body likely to cause future illness even though it is fully treatable. That can be regarded as a return to the dark days not so long ago. Many of us remember when people were excluded from jobs not because they had serious tuberculosis but because they had more minor infections and were regarded as having had that disability.
If the Government's definition was carried to its logical conclusion, few people in the workforce would escape a health witch hunt. It would be better to use the ILO definition which measures disability as 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. We will propose an amendment of this type on Committee Stage.
Although discrimination on grounds of sex or marital status is already precluded under the Employment Equality Act, 1977, many of the issues covered in this Bill affect women. Women still face man made barriers in recruitment, promotion and admission to training which can lead to advancement. They also find themselves locked out of State-run training schemes and work options, especially if they are homemakers who are endeavouring to re-enter the paid workforce. If we are to tackle inequality we must deal with these important issues. For example, widows cannot get access to community employment schemes or FÁS schemes.
 Women are disappointed the Bill does not require comparison in equal pay with a hypothetical male, according to the National Women's Council. The National Women's Council and others have argued that if equal pay legislation is to succeed and have real effect where there is a high propensity to use women as cheap labour, it must ensure that all women are able to secure what would be the male rate for the job. The European Court of Justice has ruled out any comparisons which are not made on work performed by employees of a different sex within the same employment. Community law does not require comparisons with a “hypothetical male”. The Employment Equality Bill does not extend the equality legislation beyond our obligations under Community law. Clearly, there are implications for industries and businesses which employ all female staff.
Deputy Bertie Ahern when Minister for Labour, and his successor, Deputy Brian Cowen, proposed the introduction of a hypothetical comparator if no actual comparator existed. That is still our position. Why has the Rainbow Coalition dropped that proposal? In the Netherlands women may make a comparison on an industry wide basis. They can choose someone working for another employer in the same industry if their own employment is single sex. This is an alternative approach. It appears the Minister has thrown in the sponge on this issue. It seems he has been compromised by his position in the Rainbow Coalition.
The Irish Congress of Trade Unions is also disappointed that “a hypothetical comparator” has been deleted from the Bill. It says one of the key criticisms of the current legislation is that it does not afford an opportunity to workers in segregated employments to achieve equal pay. Ireland still has a highly segregated workforce, with many workers confined to low pay and low status jobs. Ireland is the only country in the European Union that has signed the social Protocol and has not got a statutory minimum wage. The minimum wage provision in other European countries affords some protection and opportunity for segregated and low paid workers to achieve equal pay.
Congress recommends that the legislation should provide a mechanism to achieve equal pay for workers in segregated employments where there is no comparator. It says this could be done by means of an hypothetical comparator, by the extension of the joint labour committees to cover such employments, or by the introduction of minimum wage legislation, which was one of the key recommendations of the Commission on the Status of Women. So far, the Minister has not adopted any of these recommendations and the issue will have to be pursued further on Committee Stage. Congress also recommends that the definition of “like work” currently contained in existing legislation should be included in the new legislation.
IBEC objects strongly to any attempt to introduce the concept of the hypothetical comparator  with regard to equal pay. In its view it has no place in law as it does not clearly indicate to an employer whether he or she has a liability. The objective of any legislation should be to specify as precisely as possible the rights and obligations of both employers and employees under an Act. This will not be possible where a hypothetical employee is involved and will result in many more cases being processed through the courts resulting in many more delays than currently experienced.
IBEC also sees the concept of the hypothetical comparator as an attempt to boost the pay of traditionally lower paid jobs filled by members of a particular sex. It says the purpose of equal pay legislation is to determine whether a woman should be paid the same as a man or vice versa or whether members of both sexes are performing “like work”. Accordingly, both the employer and worker organisations want “like work” as the criterion for equal pay and it is difficult to see why the Government has ignored both sides.
In this Bill the Government proposes to exclude the Naval Service from the provisions in so far as they relate to gender, until such time as the Minister, with the consent of the Minister for Defence, may by order provide. This is not acceptable. This section should be deleted. I accept there may be practical difficulties. A fixed time limit for its introduction can be considered. That is how the Minister should proceed on Committee Stage.
The Government has retained the right to discriminate against workers on grounds of political affiliation or belief, or membership of a trade union. The emphasis should be on performance and ability to do the job. There are far too many instances where workers are denied promotion or even an appointment because of political or trade union affiliation. Such discrimination should be stopped now. It is unconstitutional, immature and wrong. One would have hoped the Rainbow Coalition would have tackled trade union or political affiliation problems and would have been open to change to ensure people are not discriminated against.
I welcome the statutory protection from discrimination of people aged 18-65. Why stop there? Surely it would be better to ban discrimination on age grounds entirely. Otherwise, the present proposals could lead to discrimination against workers aged under 18 or over 65. The Minister has just told us more and more people are seeking work and in future many of those will be over 65. Why leave those people open to discrimination? Some adjustments will need to be made but I do not see why we cannot entirely remove discrimination on age grounds. That is a matter we can discuss on Committee Stage.
There is widespread discrimination on age grounds within the public service. This can be seen in newspaper advertisements for posts where age limits vary widely. I call on the Civil Service and Local Appointments Commission to  stop this discrimination from today and to readvertise the posts for which interviews or exams have not been held. I have brought a number of these to the attention of the Minister. The Civil Service and Local Appointments Commission discriminate on age grounds. The public sector should lead by example rather than change only when forced to do so by this legislature. The Government undertook in its programme for Government to take specific action to end discrimination and to ensure equal opportunity for all our people. Now is the time to stop the age discrimination in the public sector without further delay.
Fianna Fáil welcomes the introduction of an express statutory provision dealing with sexual harassment. However, the provision as formulated is very technical with an emphasis on legal definitions. It is regrettable the Government did not choose to take a more positive approach. Instead of focusing only on liability for sexual harassment we need more proactive measures to prevent it occurring in the first place and to ensure that every workplace fosters an atmosphere that respects the dignity of all employees. I will propose an amendment that will require every employer to introduce a policy statement on sexual harassment with regard to his or her workplace — somewhat similar to the safety statements which are mandatory under the health and safety legislation.
It is a serious concern of the National Women's Council, the Congress of Trade Unions and the Equal Opportunities Network of Practitioners, who are already successfully operating codes of practice, that the Government proposes to change the definition in a way which removes “the concept of the impact on the complainant” in cases of sexual harassment. They fear that if the perpetrator has reason to believe the victim would not find the act or conduct sexually offensive, humiliating or intimidating then sexual harassment will be deemed not to have occurred. They believe that the references in the section to “reasonable person” are unacceptable in that they purport to introduce an objective test into what is essentially a subjective matter. Since 1985 the Labour Court has relied on a subjective test as to what constitutes sexual harassment and it sees no good reason to depart from this position. It views the Minister's proposal as a cop-out. These are the people operating the codes of practice and they deserve our praise and congratulations for taking the initiative and setting up clear codes of practice which work well.
A major difference has arisen with regard to the exclusion of certain religious, educational and medical bodies from the provisions of the Bill. If an employer can show that discrimination is essential for the maintenance of the religious ethos or is reasonable then he or she can discriminate on the grounds of religion, marital status, family status, sexual orientation, race and membership of the travelling community. The National Women's Council considers this provision  to be excessive and open to abuse. It says that all voluntary hospitals and the vast majority of schools receive public funding regardless of whether they are managed by religious institutes. It believes there is no balance in the Bill between the rights of an employer and the rights of an employee. The only protection is that an employer must show that discrimination is essential for the maintenance of the religious ethos or is reasonable to avoid offending the religious sensitivities of their members or clients. The council believes this provision will be open to abuse.
ICTU has also expressed strong disagreement with the exclusions contained in section 37. It states:
Congress is totally opposed to a provision in national legislation which could allow single parents, separated people, gay, lesbian and people of no or different religious beliefs or viewpoints to be discriminated against by educational, health and religious institutions on the basis that their employment may offend members, clients, pupils or customers of these institutions.
Congress wants the provisions in section 37 deleted from the Bill. The Minister must answer these deep concerns and say how he proposes to meet these objections and avoid the introduction of new abuses. A report in yesterday's edition of The Irish Times on the INTO's special conference in Galway at the weekend stated that members were particularly upset and irate about this section. It stated:
The exclusion of religious schools from new equality legislation amounts to an unfair intrusion into teachers' private lives, the special INTO conference in Galway at the weekend has been told.
Speaker after speaker denounced the exemption of denominational schools from the Employment Equality Bill published earlier this year by the Minister for Equality and Law Reform, Mr. Taylor.
The union is to urge the Government to drop the exemption. It is currently taking legal action on the options open to teachers to oppose the provision... which represented “a step back into the dark ages” which would provide teachers working in religious schools with almost no protection.
The INTO members regard it as a very tightly drawn exemption and believes the Bill will allow employers to discriminate on the grounds of religion, marital status, family status, sexual orientation or race. It believes the only grounds on which employers cannot discriminate are gender, age or disability. There is widespread concern outside the House about this section and the reasons for its inclusion in the legislation.
The issue of religious conscience has been dealt with in other jurisdictions. The Minister referred to the Australian legislation in this area which he had examined. The Equal Opportunities Bill,  1995, introduced in the Australian state of Victoria makes specific provision for conscience and religious beliefs. It also makes provision for the direction and control of institutions in accordance with religious beliefs. This important issue will require substantial debate and consideration on Committee Stage and I look forward to hearing the Minister's views on it.
It is not possible in the time available to refer to all the provisions which merit consideration and comment. Fianna Fáil welcomes the Bill and will co-operate on Committee Stage in helping to make it an important instrument in removing discrimination from our society. I hope it will greatly improve the position of people with disabilities and women at work and make a major contribution to the removal of discrimination in the work place. We hope the legislation will represent a major leap forward in this area, and in this respect the Minister can be assured of our co-operation.
Ms Keogh Ms Keogh
Ms Keogh: In welcoming the publication of this long awaited legislation I find myself in something of a dilemma in that I cannot accept it in its present form. I was glad the Minister said he would listen carefully to any constructive suggestions for improvement and bear in mind submissions from interested groups and others. I sincerely hope he will do this. This Bill is one of the cornerstones of the legislative framework promised by the Minister and, while it has been a long time coming, it is nonetheless welcome.
Like many others, particularly those groups which up to now found themselves on the margins of our society, I looked forward to the introduction of inclusive and wide ranging legislation. The legislation is wide ranging in that it extends employment equality legislation to cover equality between employed persons, prevents discrimination in connection with employment, vocational training and membership of certain bodies, prevents harassment in employment and the work place, changes the names and constitution of the Employment Equality Agency and repeals the Anti-Discrimination Act, 1974. However, it also contains some serious flaws. Not only is it very cumbersome and complex but it has already so alarmed many groups, especially those concerned with disability, that they are beginning to wonder if they would be better off without it. I was initially faced with a similar dilemma but I hope to improve the Bill on Committee Stage.
In its attempts to be all-emcompassing the Bill is a minefield for some and, paradoxically, a disappointment for others because of what is omitted. The Minister said the Bill deals with a very complex and difficult area. This is all the more reason to have a Bill which is sufficiently clear and user friendly for employers and employees alike. It is interesting that IBEC and Congress were equally concerned that the Bill, as drafted, was overly legalistic and not at all user friendly. To illustrate the cumbersome nature of the  approach adopted in the Bill, Congress has pointed out that the expedient of repealing sections of the Employment Equality Act, 1977, while retaining others will mean that those using the legislation will still need to refer to that Act. It recommends that the Employment Equality Act, 1977, be repealed in full and re-enacted, where required, in this legislation. This would avoid the necessity of dealing with two Acts in tandem, which is what will happen if the Minister proceeds in the way proposed.
If everyone from employers' organisations to trade unions, the National Women's Council, the Disability Federation of Ireland and many other organisations, as well as practitioners in the field, are signalling their disquiet then the Minister should heed their voices and take on board Opposition amendments which will improve the Bill. I am sorry the Bill is so difficult for people to understand. I agree it was a great hindrance to the many groups who were trying to mentally digest it that the explanatory memorandum was not available until this morning. I appreciate the Minister's apology for this. I realise there was a huge amount of work involved but it is unusual to put a Bill before the House without an explanatory memorandum. A comprehensive user's guide should be produced so that not everyone would have to go through the labyrinth of this Bill.
There are major areas of concern about the Bill, notwithstanding that I welcome it as a significant contribution in the fight against discrimination in employment. I will put forward an extensive range of amendments on Committee Stage.
Section 2 defines the meaning of terms used. The Minister rightly said there is still a huge amount of discrimination on the grounds of disability. It is unbelievable, that contrary to the advice and expectations of practically everyone concerned, the Minister has insisted on a medical definition of disability. Last night, the Irish Union of Supported Employment, a national umbrella organisation committed to the promotion of integrated employment of people with disabilities, condemned the Bill on two grounds. First, the medical definition of disability is inappropriate in an employment context and second, the Bill does not require employers to make reasonable accommodation, as agreed in the NESF report on equality proofing mechanisms and institutions. The report said that continuance of discrimination on the grounds of undue hardship or excessive cost should only be considered in the context of a requirement to reasonable accommodation, that is, taking account of the cost to, and needs of all parties affected. I will refer to that again on Committee Stage.
We should examine the definition agreed by IBEC and ICTU, which focused on the functional aspects of the person undertaking work. The International Labour Organisation Convention defines disability for employment purposes in a  functional sense, as distinct from a medical sense. As the Disability Federation of Ireland point out, Ireland ratified this convention in 1986. The Bill should be amended to incorporate this employment oriented definition, as set down in the ILO definition. Why is there such intransigence about something that everyone else agrees on? Where does the Commission stand on the status of people with disability in relation to this aspect of the Bill? What is its recommendation? Does the Minister as yet have that recommendation on this most fundamental aspect of the Bill? Surely, having waited this long, the least we can expect for people with disability is that they have a mode that will not perpetuate discrimination. I cannot understand the mind set that arrives at a conclusion so much at variance with what people actually want. I will put forward an amendment, which I believe is a compromise most people will find acceptable.
There is similar disquiet about other definitions. For instance, there is no statutory definition of what constitutes sexual orientation. This must be clarified. Does it include transsexual or bisexual people? Discrimination against a person who is believed to be of a different sexual orientation should be as unacceptable as discrimination against a person who declares he or she is of a different sexual orientation. For example, discrimination in recruitment against a woman for having what an employer believes to be a lesbian lifestyle, compared with what the employer believes to be a non-lesbian lifestyle, should not be permitted in law. The definition of marital status does not include annulled, nor does it extend to a co-habiting couple. However, our recent domestic violence legislation extends the provision of barring and safety orders to co-habiting couples. We must have consistency in our legislation.
Section 6 which outlines the nine grounds on which discrimination is outlawed, should be expanded to include discrimination on the grounds of political opinion. This category has been incorporated into such legislation in other countries, including Northern Ireland, and is crucial to ensure that minority political opinions as well as religious beliefs do not form the basis for discriminatory employment related practices. In the Fair Employment (Northern Ireland) Act, religious belief is defined to include religious background or outlook. A similar definition should be incorporated in this legislation.
Section 7, deals with equal pay and like work. It does not allow for comparison with a hypothetical male. I agree with the National Women's Council, who say if equal pay legislation is to succeed and have real effect where there is a high propensity to use women as cheap labour, it must provide a mechanism for ensuring that all women are able to secure what would be the male rate for the job. It also says the European Court of Justice has ruled out any comparisons which are not made on work actually performed by  employees of different sex within the same employment.
Community law does not require comparisons with a hypothetical male. This Bill does not extend the equality legislation beyond our obligations under Community law. This means there are huge implications for industries and businesses which employ all female staff. Unless we change this, we will perpetuate the situation where women are trapped in low paid employment.
In section 7, the use of the term “is employed to do” raises a contractual issue. A person may be contracted to do a particular job and do something quite different. We must refer to what already exists. Why do we need to change the current definition?
Section 9 refers to discrimination on grounds other than gender. This does not include marital status, which is covered in the original legislation. In effect, the current legislation is weakened and I am sure that is not the intention.
Section 12, in respect of the reservation of places on a pre-registration programme in a school of nursing which provides for training for nurses under the auspices of religious orders, can be used to ensure schools have reserved places for trainees of their own religious denomination. This could have the effect of excluding, or reducing to nominal numbers, those who are not members of that denomination. I agree with the view of the ICTU that trainees should be recruited on the basis of their ability to do the job, not on the basis of their religious beliefs.
Section 16 (4) is an important one which deals with sexual behaviour exclusion. If that section is intended to combat paedophilia, it should do so in conformity with other legislation on Statute, for instance, child care legislation or other guidelines from the Department of Health. Its sweeping terms lay it open to constitutional challenges which could damage its overall intent. By encompassing non-criminal sexual behaviour and personal relationships of adult women and men, to which the public may object, it detracts from the intent of protecting minors from the criminal and predatory actions of paedophiles. It threatens to open a major loophole based on reasonable customer or client preference, which could translate into prejudice against homosexual people.
This section is far too broad and is open to abuse. In the absence of a definition of sexual orientation, and regarding the reference to “any form of sexual behaviour to which the employer might reasonably object”, there is every reason to anticipate that dismissal of an employee on grounds of sexual orientation could be lawful. Given this situation, a repeat of the decision in the Brookfield Leisure Centre case, where an employee was dismissed on grounds of sexual orientation, is more than probable. This section effectively negates the protection intended to be provided by the Bill, that an employee or prospective employee may not be discriminated  against on the grounds of sexual orientation. Reliable information is not defined in the Bill and may be entirely subjective and open to abuse. A definition of “sexual orientation” is vital so that the form of sexual behaviour the legislation intends to protect is clear. People analysing the Bill are concerned that the intent of this section is not provided for. Will the Minister re-examine the section?
Another major concern relates to section 23, which deals with the question of sexual harassment. The Bill introduces new tests of sexual harassment despite well established jurisprudence and exemplary practices by employers and unions in Irish workplaces with codes of practice. It is a step backwards from the trend in Irish jurisprudence. It will allow questioning of a complainant's lifestyle. The new tests include a reasonability test and a test on the intention of the alleged perpetrator. These tests will make it harder to pursue sexual harassment in the workplace because of the fear that questioning a complainant's lifestyle might demonstrate that the accused had reasonable grounds to believe the offended person would not take offence. One can imagine the type of argument that would be used in such circumstances. The key feature of sexual harassment is its unwanted and unsolicited nature. Whether it is deliberate or unintended is of no importance.
As it stands, section 23 contravenes the European Council of Ministers' recommendation on sexual harassment, the European Commission's guidelines on how to combat sexual harassment at work and the 1996 proposals to implement a Council directive on sexual harassment, which is being pursued by the Irish Presidency in Brussels this month. Ireland supports a 1996 directive in Brussels based on the concept of “unwanted behaviour” while introducing at home a Bill based on the concept of “what the perpetrator intended”.
Since 1985 the Labour Court has relied on a subjective test as to what constitutes sexual harassment and there is no good reason to depart from that approach. Section 23 may be in breach of the 1996 directive if and when passed under the Irish Presidency. The new provisions are likely to deter complainants from taking cases and this would be a step backwards. As I do not believe that is the Minister's intention, I ask him to re-examine this section because it is fundamentally flawed. It is pointless introducing a provision that makes matters worse rather than better.
On section 25, it is extremely difficult to envisage employment or training being conditional on accepting communal sleeping arrangements, as opposed to shared accommodation in hospital, hotels or other such workplaces. If this section is intended to exempt the Navy, it should be stated in the Bill.
Section 35 concerns financial and other exemptions for employers from providing certain services to permit disabled people to take up employment. It is difficult to discuss these matters in the absence of the report of the Commission  on the Status of Persons with Disabilities. Following publication of that report, which is expected shortly, such exemptions as are appropriate following the hundreds of hours of consultation and studies by the Commission could be inserted by way of amendment in the legislation. It is unrealistic to dwell on them before the report is published.
Under section 37, religious, educational and medical institutions are entitled to discriminate if it is essential for maintenance of the religious ethos of an institution or reasonable to avoid offending the religious sensitivities of its members or clients. This opt-out clause does not apply when discrimination is on the basis of gender, age or disability grounds but does apply to discrimination on the grounds of family or marital status, race, membership of the travelling community, religious beliefs or sexual orientation. The Bill refuses to allow discrimination on certain grounds only. This provision permits a religious school or religious-run hospital to discriminate against a person on the grounds of religious ethos or sensitivity on the basis of the marital or family status, race, sexual orientation or other characteristics of a teacher or health worker. There is no justification for providing equality for some and not for all or for discriminating against some and not against others. There is no historical, cultural, psychological, social or other reason hospitals and schools directed or controlled by a religious body should be allowed discriminate against persons because they are married or black while Dunnes Stores is not allowed to discriminate. That merely creates inequity between employers.
Many people were surprised at the reaction of teachers at the INTO conference. A report in The Irish Times states that the exclusion of religious schools from new equality legislation amounts to an unfair intrusion into teachers' private lives and that speaker after speaker denounced the exemption of denominational schools from the Employment Equality Bill published by the Minister. It also states that teachers will urge the Government to drop the exemption and will take legal action on the options open to them to oppose the provision. The General Secretary of the INTO went so far as to say that it represented a step back into the dark ages and would not provide teachers working in religious schools with any protection. That is a serious charge and the Minister must examine it carefully because in a desire to protect minorities, he may place himself in a difficult position.
Also in regard to section 37, since disability is widely defined in the Bill and the disability ground prevents a wide range of discriminations any exemption on disability conversely allows for large numbers of people to be excluded from protection. This is another anomaly in the Bill. The Army could lawfully discriminate against a person with a slight blemish, physical impairment or distant disability in his or her history.
 Section 38 refers to the change in name of the Employment Equality Agency to the Equality Authority. It also establishes a new statutory office of Director of Equality Investigations in the Labour Relations Commission and covers the appointment of equality officers and equality mediation officers. The Minister is well aware of the concern about the future role of the newly named authority. Members of the Joint Committee on Women's Rights fear that, even though it may not be the Minister's intention, the role of the agency in regard to women's equality will be diluted There is also grave anxiety about funding for the agency, particularly during the transition period. Under its expanded role, the agency will be put to the pin of its collar to deal with all the matters that confront it. It is vital that it has the ability to plan for the future and is not stymied because of a lack of resources. I hope the Minister's commitment in that regard will be fulfilled. The Minister also said he has secured additional funds to be allocated for the authority in the context of the new responsibilities. I hope they will be sufficient. I have no doubt that they will be badly needed. In the context of the proposed equal status legislation we will have to have a properly funded and expanded authority.
With regard to Section 39, it has been brought to my attention by equality practitioners that the notion of mediation in general is anathema where the claimant has legal entitlement. They say the process will ultimately deter someone from making a claim and that the timescale will be severely extended taking account of the current progress in Circuit Court cases. They believe the cost of legal representation will be a deterrent for the claimant and perhaps employers and unions. They also fear the requirement for equality officers of the Labour Court to act as witness would compromise their independence. That must be examined.
While the title “equality mediation officer” is supposed to have the same meaning as in the Industrial Relations Act, 1990, this Act does not define “equality mediation officer”. It is important to address that issue.
This Bill does not provide for legal aid in cases referred to the director of equality investigations. Civil legal aid can be obtained through the civil courts but the Bill does not allow for legal aid in cases of discrimination using each means of redress.
Submissions have been made to the Minister for Equality and Law Reform concerning the provisions of sections 41 to 45 by equality officers who operate the current Acts. Their concerns relate to the uncertainty as to how a complainant will eventually obtain a determination from a deciding forum, be it the director, Circuit Court, Labour Court or High Court, without the case being referred along several parallel routes to obtain redress.
Remedies in section 46 are severely limited in most instances. Successful equal pay cases may be dealt with by an order for compensation in the  form of arrears of remuneration in respect of so much of the period of employment as begins not more than three years before the date of referral. In other cases, compensation of up to a maximum of two year's pay or £10,000 is specified. In unfair dismissal cases, the Labour Court may order reinstatement or re-engagement as well as financial compensation. In gender cases referred directly to the Circuit Court, no ceiling applies and the Circuit Court orders compensation appropriate to the case. The capping of compensation at such a low level undermines the potential impact of the proposed legislation in deterring discrimination.
Section 70 provides for an equality review — that is an audit of equality of opportunity and an examination of the practices, procedures and other relevant factors of, in, and material to employment — as well as the preparation of an equality action plan by a particular business, group of businesses, industry or sector by or on the initiation of the proposed equality authority. There is grave concern, however, because these powers do not cover businesses with fewer than 50 employees. Given the large proportion of companies employing fewer than 50, particularly in the services sector where women are predominantly employed, the exclusion of firms of this size from equality review and action plan preparation is not acceptable. I would envisage a much lower threshold of perhaps ten employees.
I welcome the opportunity to debate this complex and lengthy Bill which is, unfortunately, flawed. I hope the Minister will deal generously with the many areas we wish to cover in amending it on Committee Stage. It is important to have legislation that works. There is no point in having complex legislation with which those affected are not happy and which does not do the job intended. In all the instances I mentioned there is considerable room for improvement. This is particularly the case in relation to disability and sexual harassment. I hope the Minister will be prepared to accept my amendments on these areas. The Progressive Democrats will support the Bill.
Mr. E. Byrne Mr. E. Byrne
Mr. E. Byrne: I appreciate the Minister's reminder to Members that he has an open mind and will look at constructive suggestions for improvements to the Bill. There is room for improvement in parts of the Bill which is intended as part of a package of anti-discrimination measures necessary to enable Ireland to ratify a variety of UN and EU conventions and agreements. Other parts of the package include the Equal Status Bill due to be debated in the House.
Who could be other than in favour of equality in employment? Could anyone say they do not favour it? The Bill has the potential to be good but, unfortunately, in practice it will fall far short of what is needed by way of radical change. More than two decades have passed since women finally won the right to serve as jurors following  a court challenge led by Mairín de Burca. Similarly, 20 years have passed since women were first allowed to remain in the Civil Service following marriage. Yet women, people with disabilities, ethnic and religious minorities, gays and others still face a wall of discrimination when seeking employment or equal treatment in employment.
While this legislation is welcome in that it knocks several bricks from the wall of discrimination, I would like to see the wall demolished. Equality is indivisible and cannot be drip fed here and there. I am concerned about a Bill which outlaws discrimination on nine grounds and then exempts institutions under religious control from all but three of these grounds although I understand the background to this section. I am particularly sensitive to concerns that institutions with a minority ethos should be allowed to maintain that ethos. I come from a strange mix of religious ethos in my own background.
The Bill as drafted effectively permits institutions under religious control to discriminate on grounds of marital status, family status, sexual orientation, religious belief, race, nationality or even membership of the travelling community. In trying to save the position of religious minorities this legislation proposes, for the first time, to enshrine in law discrimination against various other minorities.
Everyone in the House is sensitive to the concerns of minority religions and is anxious to ensure legislation passed by the Oireachtas will not militate against them. However, the position of one minority should not be ringfenced in a way which limits the rights of other minorities. The Bill as framed is specifically inadequate in the way it deals with discrimination in hospitals and, especially, in schools. It requires revision in that and, perhaps, other respects. I am concerned that the areas excluded from the scope of the Bill are far too wide.
If we are to agree, as this Bill suggests, that discrimination is allowable in certain circumstances, I argue that those circumstances need to be clearly spelt out. They need to be justifiable and require third party determination of every instance of such discrimination. It would be completely unacceptable to give a blanket authorisation to certain institutions to discriminate without adequate in-built checks and balances. It is unacceptable for us as legislators representing the electorate, which includes taxpayers who pay for publicly funded institutions, to give any absolute right of discrimination and to allow large areas of employment to have a type of offshore status as regards employment equality.
Section 37(1) appears to go much too far in allowing discrimination in schools and hospitals. I am aware that the Minister has described those provisions as tightly drawn exemptions. After a close reading it appears that section 37(1) exempts almost every primary school on all discriminatory grounds other than the three listed, age, disability and gender. That is because more than 90 per cent of all national schools are institutions  “under the direction or control of a body established for religious purposes”. As we are aware, the patrons of those schools are bishops and they appoint the majority of members to school boards of management and to teacher selection boards. Sadly, parents have secured only recently the right to participate on school management boards. Having opened up access, I hope this legislation will not allow the wagons to be drawn again in a circle.
What are described as de facto denominational schools are publicly funded institutions and the teachers employed in them are paid 100 per cent out of State funds paid for by taxpayers. Often parents do not have a real alternative as between one denominational school and another. I am seeking to raise a matter on the Adjournment concerning the lack of choice and difficulties faced by parents who have chosen to send their children to multi-denominational schools. Crumlin multi-denominational school has been served an eviction notice to vacate the premises in Kilmainham it is temporarily occupying on a short-term lease. The teachers and students of that school are like the wandering Jews — they have occupied four temporary premises — and then we talk of discrimination. It would be interesting to hear the views of parents who are attempting to offer their children multi-denominational education.
I feel strongly that there is an important democratic question at issue here. Are we prepared to allow workers paid out of public funds to be discriminated against on six grounds, including that of religion? I am concerned that we may establish a right in law which until now has been only implicit. It may be argued that discrimination allowed under section 37(1) must be essential or reasonable under the terms of the Bill. I am seriously concerned about the “reasonable in order to avoid offending” criterion. That could turn out to be a licence to discriminate. There is no indication of the number of members or clients who must be offended for discrimination to be subject to sanction. The “essential” criterion refers to the ethos of the institution. I do not believe there is a definition of the word “ethos” in the Bill. I understand that the education Bill dealing with schools and their management will include a definition of the ethos concept. I also understand it may include the parameters within which ethos is to be defined. I would have thought that the details concerning ethos and its influence, if any, on teacher employment should be dealt with solely under that Bill.
However, that Bill will not deal with hospitals or non-teaching staff in schools. Because it is possible that non-teaching staff could be severely and adversely affected by provisions in this legislation in its present manifestation, this Bill could conjure up an appalling vista of a school where potential employees fail to get three positions funded out of the public purse. X could fail to get a teaching job because of legal discrimination on  grounds of religion, Y could fail to be appointed a school secretary because of legal discrimination on grounds of marital status and Z may not be considered for the post of caretaker or grounds-man because of legal discrimination on the grounds that he is a member of the travelling community. Sections 6 and 36 could constitute a charter for discrimination and this aspect of the Bill needs to be revisited.
I am also concerned about the wording of section 16(4) which ostensibly deals with the need to protect children from sexual abuse. Like all politicians and decent citizens, I share the mounting public concern about the possible access of paedophiles to children. I welcome the provision that an employer shall not be constrained to hire someone with a conviction for such sexual behaviour. If there is any doubt, the interests of the children must be paramount. However, the Bill goes a great deal further and I refer to that part which allows an employer on the basis of “other reliable information” to refuse to employ a person because that person has a propensity to engage in any form of sexual behaviour to which a client or customer of the employer might “reasonably object”. I ask Members to consider what forms of sexual behaviour might be envisaged. Would a gay person, a heterosexual who is cohabiting or a person involved in an extramarital relationship, each in its own right a legal form of sexual behaviour, possibly be legally discriminated against if an employer could find a person to object to the potential employee on those grounds? I fear there is scope for collusion to secure dismissal in such cases. I suggest that section be reworded to include the phrase “illegal sexual behaviour”.
I welcome another protection in the Bill, the establishment of an objective independent authority to rule authoritatively on every case of alleged discrimination, including the types apparently allowed under the sections I mentioned. Part V provides for the appointment of a Director of Equality Investigations and under section 38(3) the Industrial Relations Act, 1990 is to be amended to allow the LRC to appoint a member of its staff to that office. The provision states that the commission may appoint such a person, but I argue that the word “shall” rather than “may” should be used. That can be teased out on Committee Stage.
There is no requirement to have a director appointed, but a great deal of Part V depends on such an appointment. There are a number of other key areas where further work needs to be done in regard to that measure. Section 12(4) provides that the prohibition of discrimination on religious grounds shall not apply in respect of places in a school of nursing in certain defined circumstances. This proposal is tighter than that provided for in section 37. Perhaps the Minister could clarify the circumstances in which such discrimination is necessary. Section 36(1) refers to local authority workers and to teachers in primary and post-primary schools. The provisions  referred to in subsection (1) relate to residence, citizenship and proficiency in the Irish language. Perhaps the Minister will explain why provisions relating to residence and citizenship in particular are included for teachers and local authority workers.
I regret having to raise so many questions about the Bill, but I am sure the Minister will listen to constructive criticism. A lot of work must be done on Committee Stage to improve this important and historic anti-discrimination charter for employment. We have come a long way since the debates in this House on the mother and child scheme. To allow discrimination in over 3,000 schools under religious patronage and in many State funded hospitals appears to tip the balance in favour of religious institutions at the expense of the citizen.
We all agree a balance must be struck between individual rights, such as the right to work, good employment conditions and promotional opportunities, and the sensitivities of authority and those whom they serve. This Bill has not struck the right balance. I look forward to the Minister's assurance that my concerns will be taken into account and that he will amend the legislation accordingly. I welcome the intention behind the Bill, which will be viewed as a dry run for the long promised equal status legislation. I appreciate the Minister's difficulty in balancing conflicting constitutional imperatives. However, the mix is not adequately balanced. After decades of discrimination, minorities deserve progressive legislation. Our legislation cannot and should not provide for large equality free zones.
Mr. B. Ahern Mr. B. Ahern
Mr. B. Ahern: I welcome the publication of this long awaited Bill. Nine years ago, as Minister for Labour, I published a discussion document on unfair dismissals, employment equality and the payment of wages. Following its publication, I began working on draft legislation in each of those areas. I was responsible for the subsequent enactment of the Payment of Wages Act, 1991. This work was continued by my successor as Minister for Labour, Deputy Cowen, and was finished by Deputy O'Rourke during her time as Minister of State at the Department of Enterprise and Employment with responsibility for labour affairs when she published the Unfair Dismissals (Amendment) Act, 1993. When Deputy Cowen left office in 1992, he was within days of having the Employment Equality Bill debated in the House. After the election, responsibility for that Bill transferred to the new Minister for Equality and Law Reform, Deputy Taylor. Some of the ideas the Minister has included in the Bill since then will be of benefit. However, I question his delay in bringing this important legislation to the House, as well as his decision to omit a number of important provisions suggested in the original discussion document.
I do not always agree with Deputy Eric Byrne but he made a number of valid points. The Minister should outline the thinking behind his  decisions. If the Minister outlines the agreements he has made with various people and institutions about this and other legislation, then we will know the answer. The Minister must give us his reasons because the goalposts seem to have moved. I ask the Minister to outline in detail why these decisions were made because we are entitled to know the reasons. I have no doubt other people were involved in these decisions, such as the Minister for Health and the Minister for Education.
This is complex legislation, which has taken almost ten years to prepare. I grappled with it and other legislation for five years. However, only a few people will speak on it because we do not have the time or the capacity to examine it. I am advised it is poorly drafted. However, I am more concerned about its omissions than its drafting. Perhaps this is not the fault of the Minister because I am sure he is only interested in introducing good legislation. However, good legislation is not drafted when other people and institutions have a vested interest in it. I am afraid we will end up with many sections but little content. I ask the Minister to outline his reasons for section 37.
In line with the commitment of the Fianna Fáil led coalition of 1992-3 to tackle discrimination against minorities, this Bill seeks to combat discrimination on a wide range of grounds. My party colleagues welcome this development which can only be of benefit to both the workforce and employers. The Minister can rest assured that he will have the support of the Fianna Fáil Party in his attempts to eliminate discrimination against individuals on the basis of gender, marital status, family status, sexual orientation, religious beliefs, age, disability, race and membership of the travelling community.
This Bill is not without flaws. Despite the inordinate amount of time apparently devoted to its preparation, many of its provisions fail to achieve their desired objectives. On occasion the right to equal treatment is unnecessarily limited by sweeping defences. My Front Bench colleague, Deputy Woods, will pursue these matters on Committee Stage when he will propose a number of amendments which I hope the Minister will accept because they are based on our knowledge of this matter over many years.
There have been remarkable developments in employment equality law since Ireland's accession to the European Economic Community in 1973. During the 1970s the Oireachtas passed two landmark Acts which significantly improved the legal position of female employees. The Anti Discrimination (Pay) Act, 1974, was designed to tackle the problem of gender-based discrimination in regard to pay and the Employment Equality Act, 1977, made it unlawful to discriminate between individuals on grounds of sex or marital status in recruitment for employment, conditions of employment, training or work experience and in opportunities for promotion. While the 1977 Act was aimed primarily at eliminating discrimination by employers, it also made  unlawful discrimination in activities related to employment such as discrimination by organisations providing training courses, trade unions and employment agencies, as well as prohibiting the display or publication of discriminatory advertisements.
These two Acts went some way towards improving working conditions and eliminating gender discrimination in the workplace. Over time, however, certain inadequacies became apparent. For example, there was no redress for women in low paid employment where there was no male comparator. There was no legislative provision dealing expressly with sexual harassment. It became clear that discrimination in the workplace was based not only on gender but on grounds such as age, disability, race, family, marital status and so on. A legislative response and an extension of the remit of relevant agencies became necessary.
In 1987 I proposed that existing legislation be amended to ensure that individuals discriminated against in terms of pay could base their case on a hypothetical comparator if no comparator existed. Deputy Cowen, as Minister, supported that amendment. The Minister, however, has abandoned that critically important idea and I would like to know why.
Mr. Taylor Mr. Taylor
Mr. Taylor: The Deputy did not implement it.
Mr. B. Ahern Mr. B. Ahern
Mr. B. Ahern: I did not have the legislation completed.
Mr. Taylor Mr. Taylor
Mr. Taylor: Why?
Mr. B. Ahern Mr. B. Ahern
Mr. B. Ahern: The legislation was ready when we left Government and there was no difficulty with it. The Minister either ran away from it or one of his colleagues forced him away from it. He should tell us which option he decided. According to Industrial Relations News of 4 July 1996, the Minister abandoned the idea under pressure from the Department of Finance and the Department of Enterprise and Employment. I would be grateful if he would clarify whether his Cabinet colleagues, Deputies Quinn and Richard Bruton, are responsible for the decision to sideline an idea which has been supported by numerous noteworthy commentators, trade unions and women's groups. Some of the principles underlying the legislation for a decade have been abandoned, resulting in fudged legislation which will not have the desired effect.
I am surprised the Minister feels that he has to make special provision for the Defence Forces. Why should members of the Defence Forces not be protected against discrimination in the same way as the rest of the population? Given the Tailhook scandal in the United States and numerous high profile anti-discrimination cases in the US and the UK in regard to their defence forces, is the Minister for Defence blocking the efforts of the Minister, Deputy Taylor? Is there disagreement  within the Cabinet on this matter or has the Government simply decided to ignore the calls of PDFORRA for the protection of members of the Defence Forces from discrimination?
Why does Part II of the Bill not apply equally to the Naval Service, the prison service and the Garda? Are the Ministers for Justice and Equality and Law Reform of the opinion that female members of the Garda Síochána, for example, are incapable of arresting violent criminals or of dispersing violent crowds? The Bill seems to suggest that is so. Ironically, some sections seem to be imbued with the paternalism which they should seek to dismantle. That is unacceptable, and I cannot believe that the Minister for Equality and Law Reform does not find it unacceptable.
Ten years ago the Labour Court held that freedom from sexual harassment was a condition of work which an employee of either sex was entitled to expect. The court held that a denial of this freedom was discrimination within the meaning of the Employment Equality Act, 1977. I welcome the fact that for the first time sexual harassment is being addressed specifically in legislation. There are, however, a number of questions which I would like the Minister to consider between now and Committee Stage — Deputy Woods will put some of these questions but I wish to ask three. Why does the Bill not protect employees against sexual harassment perpetrated by their employers outside the workplace when the employees in question are not working? Why does the Bill fail to outlaw homosexual harassment in the same way that it outlaws heterosexual harassment? Why does the Bill seek to cap the levels of compensation payable to employees who have been discriminated against, despite the decision of the Court of Justice in the Marshall case?
I call on the Minister to examine more closely the various exceptions relating to family, age and disability. There is a danger that these are drafted too widely and could facilitate a small number of unscrupulous employers to avoid their obligations under the legislation. We are trying to close the net, not make it easier for people to practise discrimination. If we do not do that, the Government will be remembered for making broad sweeping promises and failing to abide by its own rules and standards. We are lectured about openness, transparency and accountability and told about government from behind a pane of glass. When the going gets tough, however, the window cleaner always seems to go on holidays and the door to open Government slams in the public's face.
The Government is asking employers to eliminate discrimination in the workplace, but it is worth looking at the Government's record in this area. Why do many public agencies still impose maximum age limits when recruiting staff? Why are many public buildings, including the Employment Equality Agency, not easily accessible to people with disabilities? Why do almost all  Government Departments and State agencies not have crèches or crèche facilities?
We are debating this Bill as the 20th century draws to a close. We can look back on this century as one in which great progress was made in the workplace, progress which was matched by major developments in labour law. Thanks to the efforts of Ministers such as Patrick Hillery, Gene Fitzgerald, Michael O'Leary, Deputies Cowen and O'Rourke and others, we have a range of labour legislation which will serve us well as we face up to the challenge of the 21st century. In the coming weeks we will have an opportunity to make a real impact in the battle against discrimination in the workplace, and the Fianna Fáil Party is determined to play its part and assist the Minister in that battle. We will propose a number of important amendments to this Bill, which I hope the Minister will take on board.
I fear an effort will be made not to supply speakers from the Government benches. The debate could quite easily have collapsed. When I entered the Chamber there was not a long list of speakers despite the fact that this Bill dealing with discrimination in the workplace, a subject we have been discussing for 30 years, is phenomenally important. Practically every Member of the House has dealt with such cases in their constituency. It is over nine years since I, as Minister for Labour, published a discussion document. Despite this there is a danger that the Bill, which will affect the lives of thousands of workers, could drift through. That is wrong.
The Bill should be the subject of a long debate on Second Stage. Although it was published on 1 July the explanatory memorandum only appeared today. As not all Deputies are legal experts, parliamentary draftsmen or constitutional lawyers and they do not have the facilities to relate Bills to other legislation, they work from the explanatory memorandum. When it is not available they cannot prepare adequately. Even though the number of speakers will be limited, some very good points have been made from both the Opposition and Government benches. These matters will have to be fleshed out if we are serious about tackling this issue.
While I do not doubt the Minister's intentions, his colleagues in other Departments have ignored the excellent suggestions put to them by the Minister and his officials who I know want to deal with this matter comprehensively. If that continues to happen, as in the case of so many other matters, the Bill will not be worth a penny candle.
Why is the Bill so restrictive? Why are there so many contradictions, limitations, exclusions and changes? I would welcome answers to these questions. Decisions have been made by the Cabinet. I am not arguing with him but the Minister has to outline the reasons they were made and what happened.
I have had an interest in this matter for a long time. I made my first speeches on the issue at trade union conferences in 1970 and 1971. I hope we are enacting serious legislation, not mere  words. The Bill, as it stands, cannot be described as such.
Mr. Ring Mr. Ring
Mr. Ring: As Deputy Ahern said, this is an important Bill. It is the first time in 20 years that employment equality legislation has been brought forward. I am glad it has been introduced on the Government's initiative and that we were not directed by the European Union to do so.
I will not pretend I am an expert in relation to the Bill's contents. Deputy Ahern said he made his first speeches on this issue at trade union conferences in 1970. I have never been a member of a trade union but was self-employed.
There are two issues I would like the Government to deal with. A number of weeks ago an unemployed man came to see me at my clinic. He had applied to Westport Urban District Council for a job as a traffic warden, an important position, but it wrote back to say that he was not eligible as he was too old. The council set up a panel of nine or ten people not one of whom accepted the position. My attitude is that if someone has the ability to do a job well, be they 50, 60, 70 or 80 years of age, they should not be debarred on age grounds. The council now finds itself in the position where it has to readvertise the post. I ask the Minister to look at the matter before Committee Stage.
I represent a rural constituency and in the course of my work deal with people with disabilities, many of whom feel they will never have an opportunity to enter the workplace. County councils and other State agencies have failed to reach the quota of 3 per cent specified. The least any company which is grant aided by the IDA should do is employ a number of people with disabilities. This should be laid down as a condition. If a company employs 100 or 200 people there should be a quota of two. I ask the Minister to look at this matter also.
A campaign is being conducted by a man called Michael Corbett on behalf of people with disabilities who are seeking the services of personal assistants. I am talking about people with severe disabilities, those who are blind, confined to wheelchairs and totally dependent on others. I ask the Minister to work closely with the Minister for Health, Deputy Noonan, and the Minister for Enterprise and Employment, Deputy Richard Bruton, to ensure money is made available in the forthcoming budget to enable personal assistants to be provided. Under FÁS schemes such assistance is provided for up to one year. The service should be placed on a statutory footing.
There are 240,000 people with disabilities, a percentage of whom require personal assistance. Unlike people with disabilities, those seeking grant aid and tax incentives in respect of pilot schemes have the power and wealth to lobby Government to get what they want. A number of weeks ago on a wet and miserable day people with disabilities from Belmullet, Castlebar and Westport protested outside Leinster House for 12 to 13 hours looking for their rights.
 There is no point in being hypocritical in introducing this Bill. Many other issues should be dealt with first. I am talking about people with disabilities. I ask the Minister to consult his ministerial colleagues on the question of the personal assistants and in that way help people who are unable to look after themselves. There was never a better time to do this because there is money in the kitty. The Irish people are well known for helping agencies outside this State experiencing difficulties but it is time we helped our own people. They are simply looking for a little independence but able bodied persons do not think about these matters.
I want to refer to an incident I raised in the House 12 months ago which was dealt with by the Minister for Social Welfare and his Minister of State. A group of people with disabilities travelled from Mayo to Dublin under the free travel scheme, but on leaving Dublin they were required to again queue to get their return tickets. Iarnród Éireann, which is losing a great deal of money, examined this problem and I understand it now proposes, on a six months' trial basis, to allow people with disabilities to buy return tickets. The taxpayers are keeping Iarnród Éireann on the road and the least it can do is make it easy for people with disabilities to travel by allowing them to purchase return tickets. One can imagine the difficulties experienced by people who travel to Dublin for specialist treatment. They spend the whole day in a hospital and are then expected to queue in Heuston Station for a return ticket.
I welcome the Bill. It is time we looked after people with disabilities instead of just talking about the problem. Action, as well as funding is needed. We now have the opportunity to help these people and I hope that will be done.
Mr. N. Ahern Mr. N. Ahern
Mr. N. Ahern: It is obvious that this is complex legislation. I admit I have not read the Bill and did not expect to be called upon to contribute to the debate. However, I was sorry to hear Deputy Ring join others in criticising Iarnród Éireann, although the point he made about people with disabilities being unable to buy return travel tickets is valid. Such a policy should not have been put in place but I am sure Iarnród Éireann would say it was acting on instructions from the particular Department.
The explanatory information on the Bill was made available only in the past day or two. Prior to that I understood the legislation would deal with discrimination in employment but the Minister, in his opening contribution, referred to discrimination because of age, gender, marital status, disabilities, etc. Is such discrimination widespread? I agree there is discrimination in some areas but it appears somebody is working off a socialist international agenda of 20 or 30 years ago. Life has passed us by in regard to many of those issues.
 Legislation should be progressive; it should not try to catch up with custom and practice in society. There is not a great deal of discrimination in the areas referred to in the Bill; much of it has been dealt with already. I am not saying discrimination does not exist. Geographic discrimination is widespread in Dublin but it is not mentioned in the Bill. It is not based on one's gender, marital status, age or sexual orientation but on where one lives. This problem is not referred to in the Bill because the international guidelines, from which I presume this legislation is proposed, do not refer to it. We know geographical discrimination exists in African townships but it exists here also and we are turning a blind eye to it.
Much of what is contained in the Bill is pseudointellectual and theoretical. It does not address the problems in the real world. The Minister of State is smiling but I am exaggerating to make a point. Geographical discrimination may not be a problem in Wexford or other country towns which have much more of a social mix but that is not the case in Dublin.
I realise this is a broad area with which Government Departments are dealing but I would have expected employment equality legislation to recognise the problem of geographical discrimination. The legislation is politically correct in that it refers to excluded sections of our society, including travellers, but it does not address the problem to which I refer.
People applying for jobs in Dublin are afraid to use their own addresses because they know they will not get even an acknowledgement of their application. They use the address of a relative or a friend simply to get beyond the first stage of the process. The Minister of State may say this problem is covered under a particular section in the Bill, and if so that is welcome, but it must be recognised that the problem exists and must be addressed.
In the past 20 or 30 years people moved out of the city to estates in the suburbs, many of which now have a bad name. The majority of people living in those areas are decent and hard-working although there are some trouble-makers. Unfortunately, if an area gets a bad name it becomes an obstacle to employment for the people living in it.
The proposals in the Bill are intended to address the problems of minorities. Although those problems are real, they relate only to a small minority. I hope the issue to which I refer can be dealt with in some way.
Dáil Éireann 470 Employment Equality Bill, 1996: Second Stage.