A Cheann Comhairle,
I am delighted to present this important Bill to the House today.
The Bill started life in the Seanad as a Private Members’ Bill under the name of the Employment Equality (Amendment) (No.2) Bill 2013. The Government was pleased to support the PMB in principle, bringing forward its own amendments along the way to ensure that the Bill is constitutionally robust, as well as using the opportunity presented to propose certain other changes to equality legislation. These are mainly of a technical nature and required a re-titling of the Bill to the Equality (Miscellaneous Provisions) Bill 2013.
The key purpose of the Bill is to amend the existing section 37(1) of the Employment Equality Act 1998 to better protect employees against discrimination in an appropriate and balanced way, while respecting religious freedoms guaranteed in the Constitution, as interpreted by the Supreme Court.
The current section 37(1) of Employment Equality Act 1998 provides that where a religious, educational or medical institution which is under the direction or control of a body established for religious purposes or whose objectives include the provision of services in an environment which promotes certain religious values shall not be taken to discriminate against a person if–
• it gives more favourable treatment, on the religion ground, to an employee or prospective employee where it is reasonable to do so in order to maintain the religious ethos of the institution, or
• it takes action which is reasonably necessary to prevent an employee or prospective employee from undermining the religious ethos of the institution.
The provision was previously contained in the Employment Equality Bill 1996 which was referred by the then President to the Supreme Court under Article 26 of the Constitution. While the Court held that Bill to be unconstitutional on other grounds, the constitutionality of what is now section 37 was upheld as a reasonable balance between the competing constitutional rights involved. While we can seek to find a new balance that better meets the rights of employees, the logic of the Supreme Court decision is that balance does need to be struck; it is not simply a matter of repealing section 37(1) in its entirety. This would require an amendment to the Constitution, affirmed by the people in a popular vote.
However, recognising that this was a pressing issue and that there was a chilling affect on employees in the teaching and medical professions, the Government, in the Programme for Government, committed to amending section 37(1) to ensure that its operation leads to a fairer and more equitable balance as between the rights of freedom of religion or association, on the one hand, and the right of persons in employment, or prospective employees, to be free from discrimination and to privacy in their private lives, on the other.
Section 37
A key feature of the amended Bill as passed by the Seanad is the distinction drawn between religious institutions that are entirely privately funded and those which are funded by the taxpayer. The rationale is that in the case of the second category, the Government has the right – and arguably a duty – to protect employees who are paid from public monies from unfair treatment or discrimination in their work place.
The proposal in the Bill before us today will oblige relevant employers in religious-run schools and hospitals to show that any favourable treatment of an employee or prospective employee is limited to the religion ground and action taken against a person is objectively justified by reference to that institution’s aim of protecting its religious ethos and that the means of achieving that aim are appropriate and necessary. The proposed new subsection will provide that action taken against an employee or prospective employee on the religion ground shall not be regarded as justified unless it is:
· rationally and strictly related to the institution’s religious ethos;
· a response to conduct of a person which undermines or would undermine the religious ethos of the institution, rather than being a response to that person’s status under any of the other discrimination grounds (e.g. sexual orientation) set out in equality legislation; and
· proportionate to the conduct of the employee or prospective employee, having regard to alternative action the employer could take, the consequences of any action taken for the employee or prospective employee and the actual damage caused to the religious ethos of the institution.
The aim is to raise the bar so that religious run schools and hospitals will have to show real damage to their ethos, are precluded from discrimination on any of the other equality grounds and that any action taken is reasonable and proportionate.
A Cheann Comhairle, this amendment might seem like a minor change in our law but I can assure you that it will bring a huge sigh of relief to the people whom it affects. Throughout our recent Marriage Referendum campaign, I met teachers who still could not talk about their private lives with their colleagues in work. This was not because their colleagues did not accept them but because they feared about the repercussions of being open about their relationship status or sexual orientation. In 2015, this is absolutely not acceptable which is why I am making these much needed changes.
Other Amendments
I am also using the opportunity afforded by the Bill to advance a number of other – mainly technical – amendments to existing equality legislation.
Discrimination in relation to rent supplement and housing assistance payment
The most significant of these is to prohibit discrimination in the letting of residential accommodation on the basis that a person is or is not in receipt of rent supplement or housing assistance payment. It will eliminate the inclusion by some landlords of references to rent supplement not been accepted in advertisements of residential rented property. This will involve an amendment to sections 2 and 6 of the Equal Status Act 2000.
Definition of indirect discrimination
The Bill also proposes to amend the definitions of indirect discrimination in the Equality Acts to follow precisely the definitions in the relevant EU Directives and their evolving interpretation by the Court of Justice of the European Union. Therefore, amendments are proposed to the definitions of indirect discrimination in the Employment Equality Act 1998, Equal Status Act 2000 and the Pensions Act 1990 to bring the letter of the legislation into line with those Directives.
Discriminatory job advertisements
While the Employment Equality Act 1998 prohibits discriminatory advertisements, there is no provision to allow an aggrieved party in relation to an employment opportunity to take a case to the Work Place Relations Commission (formerly the Equality Tribunal) other than a referral by the Irish Human Rights and Equality Commission (formerly the Equality Authority). The Bill intends to remedy this deficiency by allowing the person him/herself take a complaint, as distinct from allowing cases to be taken solely by the IHREC. This will involve amendments to sections 2, 8(5), 12 and 13 of the Employment Equality Act 1998.
Retirement age issues
While the Framework Employment Directive 2000/78/EC, which outlaws age discrimination in employment, was transposed into law by the Equality Act 2004 based on the wording in the Directive, the case-law of the Court of Justice has since established that national provisions laying down retirement ages could amount to age discrimination if they cannot be justified under the specific provisions of the Directive.
The Court of Justice has also held that the provision of fixed term contracts on the basis of age constitutes age discrimination and would require justification under Article 6 of the Directive. The amendments I propose in the Bill will bring our domestic legislation more into line with these judgments. The amendments required are to sections 6 and 34 of the Employment Equality Act 1998.
Swiss and EEA nationals, fees for access to vocational education and training and third level courses.
The State is obliged under the European Economic Area Agreement and the EU/Swiss Agreements to ensure that benefits in relation to admission to any course of vocational training offered by an educational or training body are extended to EU nationals are also extended to EEA and Swiss nationals, in the absence of an explicit provision to the contrary in these agreements. In practice, the same benefits in relation to such fees and admission are afforded to EEA and Swiss nationals, but the equality legislation does not refer to Swiss and EEA nationals and needs to be amended to explicitly reference them. In this regard, amendments are required to section 12 of the Employment Equality Act 1998 and to section 7 of the Equal Status Act 2000.
In conclusion, I look forward to engaging further with Deputies from all sides of the House at Committee Stage and ensuring that the Bill is passed and enacted in the shortest timeframe possible.