Wednesday, 12 May 1993
Seanad Éireann Debate
Mr. O'Toole: There are two issues I wish to raise on this section and on which I intend putting down amendments on Report Stage. However, I wish to get the Minister's view before doing that. I am discussing section 2 of the Principal Act, In the light of experience over the past ten years, why are gardaí excluded from this Act? There was a high profile case  where the most senior garda — and I do not want to misrepresent the situation — successfully challenged the method of his leaving office — to put it in the most polite words. There have been a number of cases in recent years where gardaí have successfully challenged their suspension, not under the terms of the Unfair Dismissals Act but under the normal court process. I see no reason that gardaí should not have access to this legislation.
I would like to hear the Minister's views on this matter in light of the fact that, as I said earlier and will repeat ad nauseam, anybody can challenge their dismissal. A person does not have to be covered by the Act to challenge the method of their dismissal in the courts, even if they are only one day in the job, have not taken up appointment, or have been there for ten years. What interest has the State in excluding gardaí from access to appeals against unfair dismissal, and in putting them through a convoluted, cumbersome and legalistic approach to get an adjudication as to whether their dismissal was fair, unfair, legal or illegal? How is it in the interest of the State to spend huge amounts of money on lawyers to defend its position should a garda decide to challenge his or her dismissal? Cases of dismissal involving gardaí could be opposed — to use the Minister's words — without necessitating a huge legal team, saving money for the State and ensuring access to the law for everybody. I am confused that the gardaí do not have access to this legislation. There is no issue of security involved. All that is wanted is access to the law and access to a simple system of challenge and of adjudication. The Industrial Relations Act, 1946, excluded civil servants from a variety of labour legislation.
We are part of a new Europe and this situation does not bear close scrutiny. There is no reason a person in the Civil Service should not have this legislation. Where two people are working in the same building — one for a Member of this House and another for the Department — but both doing precisely the same job, it is unfair that one of them  has access to the Unfair Dismissals Act but the other does not. I cannot understand this. I did not put down an amendment at this stage because I want to hear the Minister's view. I cannot accept that a group of workers do not have access because they are employed by the State. I discussed this with one of the employer organisations some months back and I wondered why they were not firm about this in their dealings with the State.
Mr. O'Toole: I am not straying into a Second Stage debate. The one thing I am careful about is the way I deal with my business here. I am referring precisely to the Principal Act which is being amended under section 3. Section 2 (1) (e) of the Principal Act says the Act shall not apply to a member of the Garda Síochána; section 2 (2) (f) also excludes a person employed by or under the State. Why were these groups not included in the amending legislation?
Minister of State at the Department of Enterprise and Employment (Mrs. O'Rourke): I would not challenge your ruling either, a Leas-Chathaoirligh but I think the Senator is right to raise this matter. He is, in effect, giving notice of amendments at a later stage. The Senator said he wants to hear what I have to say, and in the same sentence he said he would not believe what I am going to say. Is it because he does not want to hear what I have to say?
Mrs. O'Rourke: The Act lays down  that the State, those employed in the Garda, the Army and the Civil Service cannot have redress under the Principal Act and the amendments to it. Each of these separate groups, when they take up employment or are recruited into those services are aware of their conditions of employment from the start. Within each grouping there are redress procedures and grievance sections to which employees can bring their cases at the appropriate time. I cannot say any more than that. This arrangement is adjudged to be in the public interest.
Mr. O'Toole: With respect, neither of the Minister's arguments stand close scrutiny. The Minister's first argument is that these people are listed in the 1946 legislation. I do not have a copy of that legislation before me, but I am familiar with the relevant section of the 1946 Act. If the Minister looks at the list in the 1946 legislation and compares it to the list in the 1974 Discrimination Act, she will see there are differences. For instance, teachers are included in one and not in the other. I have an interest in that and I can assure the House what I am saying is correct. It is not enough for the Minister to say that because a group was not included in the original legislation they should never be included. That is a weak argument. We are amending legislation here and that is not good enough. Neither is it acceptable to say that these people knew their conditions of employment from the start. That is like saying it is acceptable for people to accept discrimination because they knew they are going to be discriminated against, and they have no choice but to accept the job. I take the truth of the point the Minister  made but I do not accept it is a valid argument.
It is unacceptable to offer somebody a job — as a garda, for example — and tell them they will not have access to the Unfair Dismissals Act, and then say that in taking the job, they have chosen not to be covered by the Act. Both the Minister and I know that is not the way to do business. It is not fair to deny civil servants or gardaí access to the law. It does not help the operation of the Civil Service or the Garda.
The Garda said last week they are being discriminated against by being denied the right to form a trade union and the right to strike. I am not going to discuss that but I will say they should have access to the law as it applies to other workers. The Minister has not given me a reason they should not. Why do they not have access to the law now? Why did they not have access in 1946? Rather than tell me that the list was put together in 1946, the Minister should give me a fair response and say that we will look at it on Report Stage.
Mr. Sherlock: This is the most appropriate section to raise my arguments. The structure of the tribunal should be changed to provide for full-time chairpersons who are not members of the legal profession. Is the chairperson always a member of the legal profession?
Mr. Sherlock: I want to make a point on section 3. Is there evidence that the purpose of the unfair dismissals legislation is being defeated by the payment of compensation rather than the reinstatement of people who bring their cases under the Act?
Mr. Norris: We all know the argument Senator O'Toole made is a very good one. The practice itself is discriminatory. Where does it come from? We all know it comes from the British precedent. They make a habit of this niggardly, miserable, wretched, parsimonious practice of excluding sections of society from the operations of civilisation. I regret that we should follow this practice. The Minister's first point was that these people are excluded because they come under categories excluded in the original Bill. It really is not appropriate because we are amending the legislation. It is the kind of argument that used to infuriate me when I argued with my brother; when I won a point I would say, “Why?” and he would say, “That is the why”. The Minister has just said, “That is the why”, but it is not a satisfactory “why” as far as I am concerned.
The point made by Senator O'Toole is an extremely good one. Why should civil servants be unfairly dismissed without recourse to exactly the same procedures that ordinary citizens have? The point he made was unanswerable. There may be  people working in the same office, under the same conditions, and doing the same work and yet, because one is technically employed by the Civil Service, he or she has no recourse under this legislation. There should be equality, and this is a Minister who has a finely attuned sense of the civilised requirements of equality. I am very surprised that the Garda, the Defence Forces and civil servants should be so excluded. There is no cogent reason, in the interests of the State, that they should be discriminated against.
Mr. Neville: I will not labour the point but I fully support Senator O'Toole in his statement. There is no reason civil servants should be excluded. It is ludicrous that officers of a health board are excluded but employees of the health board are not. The fitter or porter in a hospital is included but the nurse is not. That does not make sense. There is a lot of tidying up to be done. I support fully what Senator O'Toole said with regard to public servants, the Garda, Army and civil servants in general.
Mrs. O'Rourke: I am quite overwhelmed by the vigour, clarity and enthusiasm of Members. When Senator Norris was speaking I had a vivid recollection of him as a child saying “Well, that is why”, exactly as he said it. To go back to the point, on which there is no amendment——
Mrs. O'Rourke: I know that, but Senator O'Toole has given notice that he is considering it for Report Stage. I did not have the clarity, wit, enthusiasm and vigour of the speakers when I answered because——
Mrs. O'Rourke: Perhaps I did not make it clear enough that each of the three bodies to which the Senator refers  has its own internal disciplinary measures. The Garda Síochána has recourse to these measures in times such as the Senator outlined. The Army has recourse to Courts-martial. They have procedures to which other groups covered by the legislation do not have recourse.
Regarding civil servants, this legislation was circulated to all the unions which represent various grades in the Civil Service. One must take representative groups as being the voice of the constituents they represent. They did not say they wished to be covered by the terms of the Unfair Dismissals Bill. I have first hand knowledge of this.
The Garda and Army have internal measures. Everybody has the right to go to court should they so wish. Listening to Senator Sherlock, one would think that people in those three sectors had no rights to go to a court; that is patently not so.
Senator Sherlock mentioned the role of independent chairpersons. We are not addressing that issue at present but I would be pleased to discuss it at a later stage. I have strong views on the issue which would not be far from the Senator's own.
Mr. Norris: I would like to comment on what the Minister said. She is miring herself in further inadequacies as she speaks. She has certainly clarified that there is no good argument for placing civil servants, the Garda and Army in the invidious situation where they only have recourse to an internal mechanism of complaint against unfair dismissal. This is rubbish. Suppose my distinguished colleague, Senator Quinn, dismissed somebody from his supermarket and it was discovered to be unfair. I very much doubt if this could ever happen because he is such a charming man, but just take it as a theoretical case. Is the Minister saying to the House that Senator Quinn should then sit in judgment as to whether his own dismissal procedures were fair? It is a complete nonsense. Lewis Carroll had it to a T: “‘I will be judge, I will be  jury’, said cunning old fury, ‘I will try the whole case and condemn you to death’”. This is what the Minister is recommending. There must be independent complaints and unfair dismissal commissions.
Mr. Neville: I would ask the Minister to address the area I raised, especially with regard to local authorities, health boards and vocational education committees. There can be two different groups of people employed by the same body, one of which has redress under the Unfair Dismissals Act because they are officers while the other has not because of being employees.
Mrs. O'Rourke: That point was raised by Senator O'Toole, it is not new. Senator O'Toole may not have spelt out the vocational education committees or health boards, but it is still the same point about having two people in one office where one has the right of redress under this Bill and the other has not.
Senator Norris spoke about Senator Quinn sitting in judgment on the legitimacy or otherwise of dismissing his own employee. The Garda and the Army have internal procedures to which they have redress. In the Army there is what is called “a right of redress”. Under this system an Army man makes out his case, and goes before a board where he is accompanied and represented. I am speaking from my constituency knowledge now, not from any labour knowledge. Quite properly, the Army has its representative organisation. Senator Hillery and Deputy Lenihan, the then Minister for Defence, worked together on bringing that system to fruition, despite a lot of opposition. The Army has, and not by way of patronage, a decent, fair representative group to protect its interests, as well as having the right of redress.
The Garda has its internal disciplinary organisation and, judging by their conferences,  the gardaí are well able through their associations and organisations, to put forward their points, and be represented and heard in a proper fashion. I do not have anything further to add. This debate could go on forever.
Mr. O'Toole: There is a point which has to be addressed. We are making fish of one and flesh of another. Where we are working at the moment, there are people sharing an office and while they are not doing the same job they are doing similar work. In some cases they have access to the legislation on unfair dismissals and in other cases they do not. There is something seriously wrong with that. It is not sufficient to suggest that people have internal means of redress against dismissal. That means they must go through these internal procedures before they have recourse to a series of laws other than the Unfair Dismissals Act. If somebody wants to challenge a dismissal further, having gone through internal procedures, why can they not use this Act? Why do they have to pursue avenues such as a judicial review or an appeal under the principles of natural justice or under some aspect of common law?
These concerns are also applicable to the Garda. The Minister makes one telling point in her response, namely that this is not the position of the representative groups of those workers such as the Garda. They have not put forward any view that they want it done differently——
Mr. O'Toole: I cannot accept this legislation as it stands. My father was a garda. I do not accept that he should not have had access to the law if he had been unfairly dismissed. He was not, of course, dismissed, although he was moved very suddenly from Dublin to Dingle. I intend to talk to the representative groups of all  those workers and on Report Stage I will have a very clear view.
I am opposing this section. I did not put down an amendment in order to reserve my position until Report Stage. I want the Minister to have the opportunity of assuring this House that an amendment will be introduced on Report Stage. It is insufficient that people should have access to an internal remedy or tribunal but that they should not have access to this law. All workers should be treated equally under the law.
In relation to the Garda, I might add that the old saying, “Who guards the guards?” gives a new meaning to this legislation. The Minister should introduce measures on Report Stage to deal with this area. A guarantee to that effect would be acceptable. As it is, the Minister's proposal is unfair.
Mrs. O'Rourke: May I make a point which I do not believe has been considered? Is the Senator aware of the only way in which a civil servant can be dismissed? The only way a civil servant can be dismissed is by the collective voice of the Cabinet. That is the stated position. I was five years in Cabinet and in that time there were two such cases. Details are circulated to each Government Minister with all the background and a judgment is made. The process is embarked on reluctantly.
Mrs. O'Rourke: I am stating the fact. Part of my time here is spent on stating facts as they arise and that is a clear fact. There are other procedures. We have considered internal procedures, disciplinary regulations and courts martial. These are within the context of and underpinned by laws and regulations. Senator O'Toole is aware of this?
Professor Hillery: Senator O'Toole has referred to the internal procedures. These procedures have been negotiated between the management and qualified representatives on the employee side. They are negotiated agreements underpinned  by statute and they should not be seen merely as internal procedures. They are jointly negotiated as opposed to unilaterally imposed.
Mr. O'Toole: That is beside the point. Looking at the reports of the conference last week of the Garda Representative Association there are many things which have been negotiated with which they do not agree. Furthermore, there are many things which they want which they are not allowed by statute.
The Minister advised, I understand, that people in the Defence Forces can only be dismissed by court martial and that is covered by law. Whilst I understand the court martial position is covered by law, I certainly did not understand that people could only be dismissed by court martial.
Mrs. O'Rourke: The Senator has chosen to take me up incorrectly. What I said was each person in the Defence Forces has access to a system called the “Redress of Wrongs”. If a soldier, male or female, decides that he or she has been wrongly treated in any respect, for example if they have been sent to another barracks or have had time docked or have been otherwise punished for some deed, they have recourse to this system. It is very detailed and precise and the soldier can be represented at deliberations.
Mr. O'Toole: Whether or not there is a redress of wrongs system or other such mechanism, I have yet to hear the case as to why a soldier or garda or civil servant cannot get access to the same procedures as this legislation offers other workers. I believe that to be completely wrong. They should have access to these procedures.
It is unimpressive that the Cabinet might be drawn into the dismissal of a civil servant. I am appalled to hear it.  It is a poor way of doing business. All workers should have at least the choice of access to the procedures offered by this legislation. No judge or tribunal in the land would accept the use of the law until all internal remedies have been exhausted. If there are internal remedies they would require to be used beforehand.
Mr. Norris: The Minister as always is informative and educational and I willingly admit that I had no idea that the Cabinet has to decide on the dismissal of a civil servant. I am horrified and appalled that this should be the case. It is an utter waste of the Cabinet's time. Does this mean the dismissal of a postmistress requires a Cabinet decision?
Mr. Norris: May I ask the Minister when the Government proposes to introduce amending legislation so that we do not have this idiotic situation whereby the Cabinet has to meet to dismiss a junior civil servant and there is no recourse of unfair dismissals procedures?
Mrs. O'Rourke: As always, Senator Norris is over playing the situation. If the Senator believes that every Tuesday the Cabinet discusses civil servants he is entirely incorrect. Such cases are extremely rare, perhaps one or two in five years. I think since the legislation or regulation came in that one case at most was dealt with at Cabinet. I was not there at the time. It is farcical for the Senator to suggest that the Cabinet discusses these things every week.
Cregan, Denis (Dino).
Enright, Thomas W.
Ross, Shane P.N.
An Cathaoirleach: Amendment No. 4 is a Government amendment. Amendment No. 1 to amendment No. 4 and amendment No. 6 are related and may be discussed together.
Government amendment No. 4:
In page 6, line 26 to 29, to delete paragraph (a) and substitute the following paragraph:
“(a) the substitution in subsection (2) of the following paragraphs for paragraph (e):
‘(e) the race, colour or sexual orientation of the employee,
(ee) the age of the employee,’,”.
Mrs. O'Rourke: I want to give the background and the context to this amendment before I deal with it. Senator Quinn put down an amendment which reads:
In page 6, paragraph (a), between lines 29 and 30, to insert the following:
“(f) the age of the employee, provided the employee is less than the normal retiring age and is capable of carrying out the duties of the employment,”.
Senator Quinn's amendment forms the basis for the Government amendment which I am putting forward. One might ask why I did not just accept Senator Quinn's amendment as it is admirable. I wanted to accept but did not because we wanted to frame it in the correct legal terminology. I am aware of the positive motivation behind Senator Quinn's  amendment and I fully accept the principle that gave rise to it.
The wording of the Government amendment is, I am advised, in the correct format to achieve the Senator's aim. The scope of the Government amendment is, like that proposed by Senator Quinn, limited by such factors as normal retirement age and capability of the employee to perform the duties for which he or she is employed. In other words this amendment is governed by section 2 (1) (b) of the Principal Act, which excluded from the scope of the legislation employees who have reached normal retirement age or are over the age of 66 years, and by section 6 (4) of the Principal Act which deems a dismissal not to be unfair if it results wholly or mainly from matters such as the capability, competence or qualifications of the employee for performing work of the kind for which he or she was employed.
Accordingly, I am pleased to put forward this amendment and to state clearly that it is influenced by the amendment which Senator Quinn put forward and to which I gave my support. I felt strongly that there was a need for precise wording. I will deal later with amendments which Senator O'Toole has put down with regard to cultural and social background and such matters and will explain why they will be for other legislation. I wanted to take this amendment as it is quite precise. Age is a precise matter; a person's age is on a birth certficate and most people will tell the truth about it. At least I find that women usually tell the truth about it.
The amendment has been put in terms which, we were assured by the parliamentary draftspeople are correct. It is Senator Quinn's amendment.
Mr. Quinn: I am impressed at the speedy response of the Minister and the recognition she has given to this House by accepting its amendments. It is one of the first amendments I have proposed and I am pleased with the response. At 56 years of age — and I am being honest about my age — I was concerned——
Mrs. O'Rourke: I will be 56 in two weeks. Let us go out together.
Mr. Quinn: I will heartily accept.
Mr. Norris: Who will pay?
Mrs. O'Rourke: The Senator will pay. It will be my birthday, not his.
An Cathaoirleach: Let us hope there are no unfair dismissals.
Mr. Quinn: I am sure our spouses are welcome as well.
When I was in America some years ago my attention was drawn to an article which described how, in the fifties, the word “discrimination” was understood to mean discrimination on the basis of colour only. By the seventies, after that battle had been won, discrimination was understood to mean gender discrimination. According to that article the battle against gender discrimation has been almost won and by the late eighties it was anticipated that the battle would be against age discrimination. In Ireland we have not recognised that this is a basis for discrimination.
I proposed this amendment in view of the movement towards equality in employment as well as equality in other areas of life. Any list of categories against which the employer cannot discriminate will nowadays include age. Our unfair dismissals legislation should reflect that fact and I appreciate the Minister's recognition of it. We should take the opportunity to include age when we are broadening the categories of discrimination. That issue is of serious concern to many people in their fifties. There is a belief that people of that age have exhausted their usefulness and should be replaced by younger people. If this happens through early retirement with the agreement of the employee, that is all right. However, sometimes people in their fifties are laid off or made redundant against their will simply because of their age.
If people can do their job properly they have the right to continue working and  my amendment sought to protect that right. I am pleased the Minister recognised this and I am pleased with her speedy response.
Mr. O'Toole: I am not sure of the procedure for moving an amendment to an amendment.
An Cathaoirleach: Before we put the question of the Government amendment, the House must deal with the amendment to the Government amendment.
Mr. O'Toole: I move amendment No. 1 to amendment No. 4:
In the third line of the amendment, after “colour” to insert, “cultural background”.
I welcome the inclusion of discrimination on the grounds of race, colour and sexual orientation in this Bill. It is landmark legislation and the Minister and the Department should be congratulated on such progress. It is also welcome that any traces of ageism will be removed.
I wish to include the traveller community, a group which suffers discrimination on a regular basis, in the Act. I have worked closely with travellers for a number of years and I recently launched a book, Do You Know Us at All, about the culture of travellers. The title of the book is a quotation from a well known Irish traveller who, having discussed travellers with various people in the community, said “sure they do not know us at all”. A friend of mine — a traveller woman — was in tears one night because she could not get a hotel booking for her daughter's wedding reception. There are numerous tales of travellers not being served in public houses and not having access to various services. Such incidents undermine Ireland's attempts at pluralism.
There is almost 100 per cent unemployment in the traveller community. There are no opportunities for employment and the community feels excluded. I want travellers to be included and this amendment attempts to do that. It is  equally unacceptable that a person who may be barred from a premises because he or she is a traveller may also be dismissed or not offered employment for that reason. Having heard the Minister's views I know she would also consider it unacceptable.
As we have a Minister for Equality it is important that we include equality measures in legislation to ensure that it complies with the objectives of Government. No reasonable person could object to this amendment. It does not create difficulty for anybody in management or in the workforce, and it is a gesture which affords recognition to the travelling community. As a group they are trying to address their problems, to explain themselves to the public and they want to be an integral part of Irish society. It is important that legislation should include them.
On Second Stage I understood that the traveller community was included in the legislation. It was not, regrettably. I ask that this amendment be accepted as there is no cost implication and it affects a group that is discriminated against in employment.
Mr. Norris: First, I withdraw my earlier statement that these microphones were not for the purpose of amplification. Senator Doyle has convinced me they are. I apologise to him for having lightheartedly attempted to squash him. A previous Cathaoirleach indicated to me that the microphones were simply for the purpose of recording. Senator Doyle is correct. I apologise to him and I withdraw my remark.
I congratulate my colleague Senator Quinn. It is a remarkable achievement, so early in his term as a Senator, to have a substantial and important amendment so graciously accepted by a Minister. Discrimination on the basis of age is disgraceful.
An Cathaoirleach: Obviously the Senator used a different approach.
Mrs. O'Rourke: No, no.
Mr. Magner: There is discrimination for you.
Mr. Norris: I am sure I have many failings, a Chathaoirligh which you have unremittingly brought to my attention in the most Christian way.
Discrimination on the basis of age is an important matter. However, I have a different view of the situation. I have been teaching in Trinity for 26 years, since I was about 22. I would approve of — and perhaps the Government would consider it — releasing people from work after 30 years. I am expected to teach for a total of 45 years and I have the same pension rights as somebody who has taught for only 30 years. That is abominable. However, it is my little gripe.
With regard to the section, I am proud that this Government has been far sighted enough to include discrimination on the basis of sexual orientation. I pioneered the argument in this area and it relates directly to what Senator O'Toole said about discrimination against members of the travelling community. My amendments to the video Bill and the incitement to hatred Bill introduced the idea of paired series of groups liable to discrimination.
I support Senator O'Toole's amendment. I am not quite sure why the amendment is so broad; “cultural background” could mean a person from Foxrock or from Ballybough. I would like the people from Ballybough, Sean MacDermott Street and Dublin 1, where I live, to be protected. There is real discrimination on the basis of address which was clearly indicated, to my amusement, when middle class apartments were built in the north inner city, on “handbag corner” in Sean MacDermott Street. The contractors were careful to rename Sean MacDermott Street and it has now become Upper Cathal Brugha Street. I strongly support the motivations behind this amendment. In the original amendments which I moved and which were ultimately successful, I specified discrimination based on sexual orientation and/or membership of the travelling community.  I wonder if Senator O'Toole has cogent reasons for altering the wording.
Mr. O'Toole: I did not have cogent reasons. There are other minorities in the country and there is an incipient racism in Irish society which worries members of Government. I was trying to include other sections of society, as well as the travelling community.
Mr. Magner: Cork people.
Mr. O'Toole: Cork people in Dublin are not discriminated against.
Ireland is becoming more pluralist, as people from other nations with different cultural backgrounds settle here. Therefore, I should also deal with those. My amendment mainly relates to members of the travelling community. I would be happy to withdraw it if it would be dealt with on Report Stage.
This issue does not impinge on the Principal Act or create a difficulty for either side of the House. Therefore, I ask the Minister of State to consider addressing this point, perhaps following consultation with the Department of Equality and Law Reform, with a view to introducing changes on Report Stage. I do not believe that this issue can be dealt with by the Department of Equality and Law Reform except in a general consolidated Bill which would make reference to all other Bills and make the issue more complicated. This is the place to deal with it and it is clear from the explanatory memorandum of the Bill what we are trying to address.
I would be happy to discuss membership of the travelling community if that is more acceptable to the Minister of State. I broadened it out because I was looking ahead. In Ireland now there are different cultures reflecting different backgrounds and communities. I am worried in case racism develops; I was trying to deal with that. Perhaps I was trying to do too much. I am happy to deal with membership of the travelling community only.
Mr. Doyle: I accept Senator Norris'  apology. The Minister of State cannot understand what we are talking about, but we will explain it to her afterwards.
Mrs. O'Rourke: The Senator has his own little pranks too.
Mr. Doyle: I have reached that magic age of 56 which the Minister of State shares with Senator Quinn. I have no difficulty accepting the amendment proposed by Senator O'Toole.
Mr. Quinn: It is easy for us not to discriminate on the basis of race or colour as we do not have race or colour problems. However, we have a problem with discrimination against travelling people. Whatever the words are or need to be, I am sure the Minister of State will give proper consideration to them. I am sure the support of the House will be available.
Mrs. O'Rourke: I share the sentiments expressed by Senator O'Toole. The Government appointed a Minister for Equality and Law Reform, Deputy Taylor, and he is currently preparing equal status legislation and employment equality legislation. My Department has had meetings with the Department of Equality and Law Reform, both at ministerial and official levels. The matter has been well discussed. We have been told that the Minister will embrace these issues in employment equality legislation.
I accept what Senator O'Toole and the other Senators have said on this issue. Senator Norris and Senator O'Toole want to know what wording will be used. Will it be “cultural origin”, “cultural background”, “ethnic origin”, “social origin” or “travelling community”? These terms have been considered. During my meeting with Deputy Taylor, we discussed suitable terminology. We wanted to find the terminology which would best encapsulate the views we all share in relation to this matter. The Minister, his officials and his advisers are currently examining other legislation so as to find the best terminology which would  not be ambivalent and which would be understood by employers, employees and the adjudicative authorities. I am aware of these developments because I had a meeting with Deputy Taylor when we talked extensively about this matter.
Senators may say I accepted the amendment related to “the age of the employee”. However, age is precise and retirement age is clearly indicated. Therefore, the amendment could not be open to other interpretations. We want to get the best interpretation of this wording so that it will embrace all of our concerns. The Minister for Equality and Law Reform Deputy Taylor has the necessary expertise available to him and is pursuing that path.
I am not saying that Senators cannot discuss this matter on Report Stage; I am saying that the Minister has already considered this matter. Equal status legislation and employment equality legislation are being prepared and Deputy Taylor wishes to use the correct terminology in employment equality legislation. We do not want to settle for a wording, whether “cultural origin”, “travelling community” or “social background”, which might not be the right one. It is for the Senators to decide which way they wish to pursue this issue; we are all ad idem upon it.
Mr. Norris: I accept the careful response of the Minister of State on this issue and I would like to make one point. It is important that these phrases are automatically included in future legislation. The terminology “sexual orientation and/or membership of the travelling community” was satisfactory in previous legislation. Once it becomes uncoupled, the travelling community could be dropped as an automatic component. I hope these phrases will be automatically included in future legislation, including, I hope, an anti-discrimination Bill. I am concerned that sexual orientation and/or the travelling community, which are related, should remain coupled in case those drafting future Bills follow the example of this Bill because it is the latest one, and accept the wording.
 Senator O'Toole and Senator Quinn made some important points. We do not have coloured minorities but we do have cultural minorities. Perhaps it would be better to include membership of the travelling community and cultural background as they are distinct categories.
Mr. O'Toole: I cannot articulate to the Minister the views of the travelling community. They will not understand this decision. It is difficult to explain to a traveller the views of a hotel manager, who returned a deposit when she discovered the individual is a member of the travelling community. It is difficult to explain to a mother that her child can only go to the local disco when she receives a pass from the local gardaí. This is Irish society today.
This is an opportunity for the Minister of State to display a caring approach. Although I know the Minister of State's views on this matter, travellers do not. What has caused these people to feel different from everyone else?
This legislation does not accommodate difference. It reinforces exclusion and facilitates discrimination. The Minister does not want to do this; I know her views on this issue. Travellers are not recognisable by the colour of their hair or by particular mannerisms. Many travellers are organised and they may have undistinguishable accents. Often the background of a traveller in employment may remain undiscovered. However, they do experience a sense of insecurity. Do people realise the lengths to which travellers go in order to be dealt with like ordinary people? I know of two travellers who have glasses with plain lenses. They may get casual work and go to pubs because nobody believes travellers wear glasses. That is why this legislation is unacceptable.
A traveller who breaks down barriers, including educational barriers and finds employment fears dismissal if her or his background is discovered. They cannot celebrate their cultural background. They cannot tell people they made it  because their background is always a dark secret.
I appeal to the Minister of State to address this situation and to say why this amendment cannot be accepted. I am prepared to speak with the people in the Department of Equality and Law Reform if the Minister of State agrees to deal with this issue, in consultation with them, on Report Stage. It would be an important gesture which would make a difference to those working with the travelling community and would enable leaders of the travelling community to say to their people that there are people in authority who care. It would give these people the ability and incentive to seek sustainable employment.
Mrs. O'Rourke: The Senator said I wished to facilitate discrimination. Let me state unequivocally that I do not.
Mr. O'Toole: Let me correct the record of the House immediately. I would not and did not say that. I said that this legislation, as it stands, does three things. It will be seen by the travelling community as a refusal to accommodate their culture. It reinforces exclusion and it also facilitates discrimination.
Mrs. O'Rourke: That is another matter. The Senator said this Bill facilitated discrimination.
Mr. Norris: The Senator said the legislation facilitated discrimination, I heard it clearly.
Mr. O'Toole: If I had said that I would withdraw it. It was never intended. I hope the Minister of State will look at the record and see that I did not say that.
Mrs. O'Rourke: The words you used were “facilitates discrimination”. In the couching of this Bill — and it has been duly noted and regarded by all — we deliberately removed any discrimination on the basis of sexual orientation. When the history of the Houses is written I hope there will be a piece which will say: “Yes, she was the person who broke through  the door on that particular matter.” I refute what the Senator said in relation to discrimination.
Mr. O'Toole: I said I did not say what the Minister of State thought I said. Is the Minister of State not accepting this position? There is nothing to refute. I have not accused the Minister of State of anything.
Mrs. O'Rourke: The Senator said this Bill facilitates discrimination. It does not facilitate discrimination. It removes an important item of discrimination. That is the point. The Senator may not realise this. The Bill abolishes discrimination on the basis of sexual orientation. That is not a facilitation of discrimination; it is a clearance of discrimination.
Mr. O'Toole: Agreed.
Mrs. O'Rourke: I am glad the Senator agrees with me. Secondly, on the question of age, I was pleased to accept this amendment. It was a clear case of discrimination and Senator Quinn's amendment was appropriate. Age is a precise measurement, which nobody can dispute. We all support attempts to remove discrimination on the basis of social, ethnic or cultural background. However, we were unable to reach agreement on a precise wording which was acceptable to all.
Senator O'Toole is not the only one who is familiar with the travelling community. We all meet members of the travelling community during the course of our constituency work. We are aware of the measures that have to be taken by the Government in relation to housing, educational and social welfare matters. The travelling community wish to be treated like everyone else. They want nothing more or nothing less. Surely that is their right under our Constitution.
Furthermore, the Government appointed Deputy Taylor to review discrimination against women, the disabled and the travelling community and to make provision for equality in employment. I hope this task will be carried out  correctly. Deputy Taylor will incorporate any changes that are required in his legislation. The Government does not seek to facilitate discrimination, it seeks to remove it. Deputy Taylor's legislation will be absolute and accurate in its attempts to eliminate discrimination. He has the expertise, the research and the necessary qualified people to enable this to be done.
Nobody has a province on concern for minorities. Given the nature of this House and the background of its Members, I would be surprised if there was one Member who did not feel as strongly about this matter as those who have spoken. One does not need a special axe to grind; we all feel the same about the matter.
As a legislator, I do not want to insert a wording which can be so interpreted as to discriminate against a group not included by the wording. If one legislates solely for the travelling community, then what about ethnic minorities and others of different social origins?
Those living in affluent areas may discriminate against travellers and others simply because of their address. I know of many in my town who cannot find a job because they live in a particular area and would put a relative's address on an application form to improve their chances.
Mr. Doyle: That is the greatest form of discrimination.
Mrs. O'Rourke: Exactly. That should not be allowed. Why insert a narrower definition when the broader one embraces all groupings? I do not want to facilitate discrimination, but to tear it away.
Mr. Norris: I am afraid a slight touch of sharpness has entered an otherwise very good humoured and informative debate. The Minister of State in the beginning may have slightly misheard or misinterpreted what Senator O'Toole said because he did not say that the Minister either facilitated or intended to facilitate discrimination. He did say that  the Bill facilitated discrimination. He did not say that it sought or intended to facilitate this. He probably meant that, because of the incidental exclusion of a phrase, which had become almost routine because of the foresight of Government — of which the Minister of State is a member — it might appear to the travelling community that this legislation constituted some kind of discrimination. In a sense, the perception of discrimination is real to the person who believes himself to be discriminated against, despite the Minister of State's complete disavowal of an intention to discriminate. No Member of this House would imagine for one moment that the Minister of State would wish to facilitate discrimination of any kind. That has not been my experience nor Senator O'Toole's experience and it would be nonsensical to say so. I went out of my way to state my appreciation, as a member of the gay community, of the courageous and forward looking inclusion of the sexual orientation clauses by Government, without amendment by me. That is a remarkable, historic and brave action for Government. The Minister of State, however, has not answered the point I made, which is a neutral one about uncoupling an existing formula of words. In the light of that point, the Minister of State might be prepared to accept a variation of Senator O'Toole's amendment — my original wording in the previous legislation — which was sexual orientation and/or membership of the travelling community.
Mrs. O'Rourke: But where does that leave discrimination on the basis of address?
Mr. Norris: I agree with the Minister of State and it was I who raised that issue in my earlier contribution when I spoke about Dublin 1, where I live. I was delighted with her vigour and firmness in taking that up. The Minister of State is clearly concerned about this area and is leaving that margin of appreciation so  that it can be properly opened up in discussions between herself and the Minister for Equality and Law Reform. However, that is not sufficient reason for removing a previously accepted formula of words — sexual orientation and/or the travelling community — but I completely accept the Minister of State's bona fides in wishing to further expand on this matter and honour her sensitivity. There is no reason to retract the scope of previous clauses in legislation merely because the Minister of State proposes to expand it subsequently.
Mrs. O'Rourke: But the coupling of which Senator Norris spoke about was not in the employment legislation but in the incitement to hatred legislation.
Mr. Norris: And the video Bill.
Mrs. O'Rourke: From Senator Norris' words, I thought it had been in the original 1977 Act.
Mr. Norris: I give you credit for the historic decision to include it as a directive of Government rather than an amendment. It is, as the Minister of State said, remarkable and I share her hope that when the history books are written a small paragraph will pay tribute to her courage and foresight in doing so.
Mrs. O'Rourke: We will see. History books are not fair, sometimes.
Mr. O'Toole: I will not withdraw my words any more but will repeat them so that the Minister of State can interpret them and I ask her to listen carefully. I did not say that this Bill seeks to facilitate; those are the words of the Minister of State and the record will show that. What I did say is that the Bill — I will repeat it — facilitates discrimination. The word “facilitates” is not an active word, but a passive one. It means to make facile or easy; in this case, the process of discrimination. I said that, after having earlier said that this Bill removed discrimination in many other places. I would like the Minister of State to consider  the example I gave whereby, if someone has found employment and is then dismissed——
Mr. Norris: When teachers differ, travellers suffer.
Mr. O'Toole: This legislation facilitates the dismissal of an individual solely on the grounds of being a traveller. It allows discrimination to take place not actively, but passively. The word is clear and I use it in the correct context. I wrote three words down before I stood up to speak and that was one of them. Neither the Minister of State nor the Bill seek to discriminate. This means that travellers cannot, after having found employment, talk about their background — it has to remain a dark secret. There is a clear difference and if the Minister of State refuses to see the difference, there is nothing I can do. I stand over my words. I did not say that the absence of these words is intended to be used in that way, but their absence makes discrimination possible.
I cannot deal with the other areas of discrimination that the Minister of State referred to and do not seek to do that. I seek to cover the travelling community only. My arguments on the matter stand up and I admit I have an axe to grind on this issue. Therefore, I am somewhat subjective in my approach. All I ask of the Minister of State is that she consider the points I have made and address them on Report Stage, following consultation with the Department of Equality and Law Reform to ensure there is no conflict. It is a reasonable request.
Mrs. O'Rourke: As a legislator, I want to make as few mistakes as possible. My fear would be that this narrower legislation we all approve of would exclude others discriminated against, on the basis of social or cultural background. By coupling the travelling community and sexual orientation together as another form of discrimination would, to use the Senator's own words, facilitate other forms of discrimination. The Senator says this Bill would facilitate discrimination  against travellers because it does not mention them and I do not want to preside over a Bill which has that effect.
Mr. Neville: Everybody agrees that discrimination should be eliminated in all areas and I welcome the sections in the Bill which do this. I agree with Senator O'Toole but I want to make the point that under current legislation the tribunal would find the dismissal unfair if somebody was dismissed on the grounds of sexual orientation, colour, creed or membership of the travelling community. It is important to have that enshrined in legislation but the current practice is that they would be found to have been unfairly dismissed——
Mrs. O'Rourke: I do not accept that as an argument——
Mr. Neville: I am just making the point——
Mrs. O'Rourke: ——because that is leaving it to the tribunal.
Mr. Neville: I prefaced what I said by saying it was important to have it enshrined in legislation. I wanted to point out the practice which is operating at the moment.
Mrs. O'Rourke: I know that. That has been told to me, but I do not accept it.
Ms Honan: I agree with Senator O'Toole and Senator Norris. I accept the Minister's good intentions but the point she is making is that she does not want to exclude a large group of people, and by virtue of that she is willing to exclude an identifiable group.
Mrs. O'Rourke: I do not think the Senator was here when we discussed——
Ms Honan: I am talking about the travelling community.
Mrs. O'Rourke: ——the Minister for Equality and Law Reform, Deputy Taylor's Bill.
Ms Honan: I accept that but I still think the Minister of State could include the travelling community. That will not affect other people. Since the Minister has included “sexual orientation” I cannot understand why she cannot accept Senator O'Toole's amendment to include the travelling community. She has said she does not want to preside over any Bill which is imperfect. The Minister said she does not want to discriminate against any group by including them. All we are doing is including another group. I do not think including the travelling community actively excludes anybody.
Acting Chairman (Mr. Fitzgerald): We must move on, there has been enough discussion on this issue.
Mr. Norris: May I congratulate the Minister. I know she is from a very distinguished family but I scarcely imagined she was a junior branch of the Holy Family because she claims that she never likes to do anything which is imperfect.
Mrs. O'Rourke: I said as far as I can.
Mr. Norris: I am sorry to say I do imperfect things every hour of the day. It would be a pity if we tried to score points on this because I know the Minister is a person of genuine goodwill on this issue. However, I find the logic of what she said specious; I do not understand the argument fully. Senator Honan made a very good point that the Minister said she does not want to discriminate against any group by including a group. Including a group does not discriminate against any group but reduces the bulk level of discrimination. If one was to accept the Minister's argument it would operate directly against the entire section. In other words, we must specify minutely every potential, hypothetical, marginalised group in society——
Mrs. O'Rourke: That is what I said I wanted to do.
Mr. Norris: ——so that argument is against the entire clause and is fallacious  in one way. She says we are not going to include the travelling community because other unspecified groups might feel left out. Why include sexual orientation? The Minister's argument is clearly reinforced by including sexual orientation and dropping an existing category which has traditionally been coupled in other legislation——
Mrs. O'Rourke: Yes, but not in this.
Mr. Norris: I accept that but this gives a clear signal. It is not as if one group was being included and there were other unspecified areas which had never previously been included. I ask the Minister to listen, not to give us a definitive answer today but to reflect on it and on Report Stage consider the inclusion of the travelling community.
Mrs. O'Rourke: The words in the amendment are “cultural background.”
Mr. Norris: I am arguing for what I think is the intention of Senator O'Toole's amendment, which is the importance of including the travelling community. I am sure the Minister of State will consider this and if possible, will include this group. I am delighted to hear that the Minister of State and the Minister for Equality and Law Reform, Deputy Taylor, are considering proposals to cover issues such as cultural background and address.
Nothing the Minister of State does by including sexual orientation will militate against, negative or cross any Bill produced by the Minister, Deputy Taylor. The addition of that phrase will not contradict, negative or render impossible the further amplification of any Bill. I made an interjection which I will repeat in case the record did not catch it: I feel like Bottom in A Midsummer Night's Dream:“Nay I can gleek upon occasion”. The Minister of State and Senator O'Toole are former teachers and I think it is true that teachers differ and travellers suffer.
Mrs. O'Rourke: But we are not differing, that is the point.
Mr. Norris: They are giving a good impersonation of it.
Dr. Henry: I support what Senator Norris said. The Minister is noted for her good temper and sweet nature, like myself, and I appeal to her to recognise the value of including every possible group. She stated, correctly, that no one has a corner on compassion for the travelling community.
We all deal with travellers and do our best for them. Again I plead my inexperience in the House but would it be possible for the Minister after consideration, to introduce an amendment to this effect on Report Stage? If so, no answer need be given today.
Mrs. O'Rourke: It will arise on Report Stage as it has been raised, but the words in the amendment are “cultural background”.
Acting Chairman: I would like to move on. This issue has been well discussed.
Mr. O'Toole: I wish to reply to the Minister. I used the phrase “cultural background” to cover all the areas she dealt with. I appreciate that it may be too vague but my prime consideration was the travelling community. I will withdraw this amendment. I am not asking for a commitment at this stage but if the Minister is prepared to consider the inclusion of the travelling community on Report Stage, we could make progress.
Mrs. O'Rourke: We all went off at different tangents and ended up talking about the travelling community. The phrase in the amendment “cultural background” is, in my view, imprecise. How does one define “cultural background”? We all have a cultural background. If the intention is to include the travelling community, that is a separate matter at which we would be prepared to look on Report Stage, but I do not want vague wording.
Mr. Neville: It is bad legislation.
Mrs. O'Rourke: Perhaps we can deal with this on Report Stage when I have spoken to the Minister, Deputy Taylor, and the officials, it would be a good idea for Senator O'Toole also to speak to them if he wishes. “Social background” is more precise than “cultural background”. “Cultural background” is a very vague term under which all sorts of claims could be involved. The Government will look at the matter but the wording must be precise.
Mr. O'Toole: I agree.
Mr. Norris: The Minister is saying that if Senator O'Toole pinches my amendments in future he should pinch them literally, word or word, not use his imprecise words.
Acting Chairman: We are discussing an amendment to Government amendment No. 4. Is the amendment to the amendment being pressed?
Amendment No. 1 to amendment No. 4, by leave, withdrawn.
Amendment No. 4 agreed to.
Mr. O'Toole: I move amendment No. 5:
In page 6, between lines 29 and 30, to insert the following:
“(b) the deletion of all words from and including ‘unless—’ down to and including ‘notwithstanding pregnancy.’ in paragraph (f) of subsection (2).”.
This is a matter of critical importance which reflects a flaw in the legislation. I am attempting in this amendment to cover dismissals relating to pregnancy. Under the original legislation the pregnancy of an employee cannot be used as a reason for dismissal, unless the employee is unable, by reason of the pregnancy, to do the work for which she was employed. That affects nurses or others who do physical work.
This is in breach of European law.  I have a copy of a European Council Directive of 19 October 1992 which states:
Member states shall take the necessary measures to prohibit the dismissal of workers within the meaning of Article 2 during the period from the beginning of their pregnancy to the end of their maternity leave.
That is specific and there is no room for manoeuvre. If this amendment is not accepted the legislation will ignore the EC Directive.
Even if there was no such directive, I would still take the view that the dismissal of a worker because she could not do the work for which she was employed during pregnancy is unacceptable. There are other solutions, for example, a woman could, perhaps, take leave without pay, but dismissal because one is pregnant can never be acceptable.
It is also discriminatory because it can apply only to women. The courts have taken the view that because it does not discriminate against all women, just pregnant women, it may not be discriminatory. I am taking a case at the moment in another area to disprove that. Because pregnancy only affects women, discriminating against somebody who is pregnant is, in effect, discrimination on the grounds of sex.
That is a peripheral argument; the central argument is that it is wrong — and must be seen to be wrong — that a woman can lose her job because of her pregnancy. The supporting argument is that there is a European Directive on which the State is required to act. It specifically says what the State is required to do and the Minister of State is the competent authority to ensure the directive is put in place. Clearly, this Bill, the Principal Act and the EC Directive are concerned with dismissal. The State is required to accede to that directive.
Mrs. O'Rourke: When I got responsibility for labour affairs I also sought the responsibility to translate that directive into legislation, which must be done  before October 1994. However, the Government in its wisdom decided it was in the remit of the Minister for Equality and Law Reform, Deputy Taylor. I sought responsibility for the directive for the reasons Senator O'Toole gave. As a woman I believed I believed I was in a better position to handle it.
Mr. O'Toole: It sounds as if the Department of Equality and Law Reform is slowing down the process of equality.
Mrs. O'Rourke: To be frank, I wanted responsibility for that and for the directive dealing with adoptive leave. However, the Government in its wisdom decided that the Minister for Equality and Law Reform will be empowered to bring that Directive into legislation. There is no argument about the matter.
Mr. Norris: I welcome the Minister's remarks. She has once again indicated her goodwill and accepted the cogency of Senator O'Toole's arguments. He referred to section 6 of the 1977 Act. It seems to me that non-acceptance of the amendment would negate the thrust towards paid maternity leave, because the only reason for dismissing somebody on the basis that their pregnancy interfered with their physical capacity to do their work would be during the period of the pregnancy.
I was a member of the Oireachtas Joint Committee on Women's Rights for six years, and I know that the thrust of the movement for women's equality is that people should be entitled to paid maternity leave. If this amendment is not accepted to update the Unfair Dismissals Act, 1977, it will go completely against the notion of paid maternity leave. I was glad to hear what the Minister of State said, it encourages me to believe she will consider positively the——
Mrs. O'Rourke: I cannot do anything about it. The Government has made an order in regard to the duties of the Minister for Equality and Law Reform. I told the House I looked for the responsibility but I cannot overturn a Government  decision which allocates duties to different Ministers.
Mr. Norris: I am very concerned about this. This has been what the Americans call a learning experience for me today. I learned about microphones, I learned about Cabinet decisions about postmistresses and now that the Minister of State is not able to do perfectly logical things because they are the responsibility of another Minister. It seems absolutely daft. Why can we not amend the Bill? To approach it another way, why can the Minister of State not tell the Minister for Equality and Law Reform that the intelligent people in Seanad Éireann anticipated his goodwill and ask him if he is trying to block progress? I am sure there is no friction between him and such a sweet-tempered Minister.
I am very concerned about this unnecessary grid lock in legislation. Regardless of the government's decision, there is nothing illegal, unconstitutional — or improper in a Parliamentary sense — or irregular in terms of draftmanship, in accepting Senator O'Toole's amendment. I doubt if the Minister for Equality and Law Reform would cavil at its acceptance.
Dr. Henry: The Government accepted the Report of the Second Commission on the Status of Women which argued strongly in favour of the protection of women during pregnancy and on maternity leave.
Mrs. O'Rourke: That also comes under the aegis of the Minister for Equality and Law Reform, Deputy Taylor.
Dr. Henry: That man has a lot of power: the learning process is continuing. The commission's report is accepted by the Government and while this is being considered, other legislation which is not in tune with the commission report is being brought in. That is not logical.
Mrs. O'Rourke: I agree.
Mr. Neville: I support the amendment.  It is our duty as legislators to ensure that the legislation is as perfect as possible. Everybody, including the Minister, accepts the need for this amendment. This will not be good legislation unless we accept this amendment. This House has a duty to support this amendment and it might overcome some of the difficulties the Minister is having. We ask the other side of the House to support this amendment and ensure that we pass good legislation and that this Bill is not flawed, as it will if this amendment is not accepted.
Mr. O'Toole: The Minister spoke earlier about flawed legislation. This legislation will be flawed if it is passed as worded at present. We cannot accept it. The Minister and I were in Dublin Castle some months ago for the announcement of the Report of the Second Commission on the Status of Women, and on Report Stage I will read the section from that report dealing with this area. I regret that I did not make reference to it in my initial presentation. The Government is committed to acting on this report and this legislation does not reflect that commitment. That is a passive position. This legislation does not implement the EC directive governing this area. This brings the whole legislative process into disrepute. That is unacceptable. It is moving backwards and no Member is in favour of it. How do we solve this problem?
Mr. Neville: The Minister must accept the amendment.
Mrs. O'Rourke: I accept the thrust of the amendment and the points made. I set out to state my position clearly because I had an interest in the two Bills in the labour area — this Bill and the Bill dealing with adoptive leave. I wish to bring this legislation through the Oireachtas. The reasons for my interest are obvious. I am interested in this area because I am a woman. However, other people in their wisdom, decided that I would not be in charge of that legislation.
It is almost 6 o'clock and we will not get through all these amendments today. May I come back to an amendment? Can  one take advice and come back to the House with it?
Acting Chairman (Mr. Mooney): We must deal with the amendments before us.
Mrs. O'Rourke: We want to allow for consultation outside the House.
Mr. O'Toole: We can deal with it. We can break at this point. All I wished to do was to draw attention to some issues and the Minister very generously has allowed me to do so.
Acting Chairman: If the Senator wishes to withdraw his amendment he can reintroduce it on Report Stage.
Mr. O'Toole: I think we should discuss this for another ten minutes.
Mrs. O'Rourke: If the Senator withdraws his amendment he can reintroduce it on Report Stage when I have consulted our advisers.
Mr. O'Toole: I am content to approach it in that way. The Minister and all Members of the House recognise the validity of what I am trying to achieve. Our approach is the same. The wording the Minister uses may be different; I have no difficulty with that. It is clear that the section in the Principal Act creates a problem in the context of the commission's report and it creates a serious problem in the context of the EC directive. I tried to find out this morning how the legislation could be challenged in a European context.
Mrs. O'Rourke: The deadline is 1994.
Mr. O'Toole: I recognise that. No action could be taken against this legislation before 1994, and neither could action be taken if it was dealt with in another way. It would reflect badly on the legislative process were we not to amend the legislation, unless there was some compelling reason this should not  happen. There is no compelling reason at this time. We need to look at those two issues. I believe the Minister agrees with me. We need to establish how this issue should be addressed and that the Minister intends to bring in an amendment on Report Stage. If that were to happen I would be happy to withdraw this amendment and allow the Minister to examine the situation with her advisers.
Mrs. O'Rourke: My intentions are good, but it may not be possible to realise them. I have made that very clear in the House. The final implementation date is October 1994, although one should not be always dragged screaming to the altar. The legislation would not be illegal or against the thrust of the Directive in that respect. Notwithstanding that I saw it clearly as a labour need and as a matter to be dealt with under employment legislation. Others thought otherwise. I freely admit that. To enable us to have proper consultation and, hopefully, to make this change, we will discuss the matter again on Report Stage. Thank you, Senator, for withdrawing your amendment.
Acting Chairman: Thank you, Minister. Senator Henry wishes to speak but this amendment has been debated extensively and the mover of the amendment is offering to withdraw. I would like to move on. Is the Senator pressing amendment No. 5?
Mr. O'Toole: I do not want to stop anyone making a comment.
Acting Chairman: Nor do I.
Dr. Henry: The Minister has made the point that report of the Commission on the Status of Women need not have been accepted by the Government. There was no point accepting it if none of the recommendations is to be considered. This is important because not only is dismissal from a job at issue here, but the career structure of a woman in employment could be destroyed by her dismissal from a job because of pregnancy. How do we know that people in various branches of  the health services, who already complain about the amount of time people take on maternity leave will not decide that the woman involved is not suitable for the job because she is pregnant? I urge the Minister to go back to the Government and say she had a great deal of trouble with this section.
Mrs. O'Rourke: The House is united that this matter is to be addressed.
Mr. Sherlock: I recall the Wexford case where the person was dismissed not because of pregnancy but because of a relationship outside of marriage. This aspect of the situation should be taken into consideration as well.
Mrs. O'Rourke: That situation is covered.
Mr. O'Toole: I appreciate the Minister's open response to this proposal. I recognise that there are difficulties. She said that it will be her intention to examine this with a view to bringing forward an amendment.
Mrs. O'Rourke: There are difficulties.
Mr. O'Toole: I recognise that and I am prepared to take a risk on the Minister's good intentions and look forward to discussing this matter between now and Report Stage. I will withdraw the amendment.
Mrs. O'Rourke: To be discussed on Report Stage?
Mr. O'Toole: The amendment should be carried. Can we have agreement on that from the Government side of the House?
Acting Chairman: Is amendment No. 5 being pressed?
Mr. O'Toole: No. The Minister has given assurances which I am prepared to accept.
Amendment, by leave, withdrawn.
Amendment No. 6 not moved.
Acting Chairman: Amendments Nos. 7 and 10 are related and may be discussed together.
Mr. O'Toole: I move amendment No. 7:
In page 6, between lines 29 and 30, to insert the following:
“(b) the insertion of the following paragraph in subsection (2):
‘(g) the conduct of the employee's private life in matters which do not impinge on the employee's capacity to discharge all duties required in the employment.’.”.
Senator Sherlock referred to a case in Wexford some years ago in which I was involved. There is a thin line, which I recognise and try to deal with in this amendment, between where a person's private life might impinge on his or her professional work. I have tried to introduce a clear understanding that the conduct of an employee's private life in matters which do not impinge on the employee's capacity to discharge all duties in regard to employment, etc., should be part of the Bill.
A person's private life is remote from the world of work. I have, however, included in amendment No. 7 the words “in matters which do not impinge on the employee's capacity to discharge all duties” because I recognise that there may well be situations in which something in a person's private life may be utterly incompatible with a person's working life. As a general principle a person's private life should not impinge on work.
Amendment No. 10 has the same intent in saying that “the conduct of the employee at the place of or in the course of employment” would be the only issue which would lead to dismissal. Other matters should not be considered for the purposes of this Bill.
Mrs. O'Rourke: Only if it impinged on the employee.
Mr. O'Toole: Yes exactly. That is the critical part of it, that as long as people  are able to discharge their work their private lives do not create a problem.
Mr. Sherlock: Discrimination in other areas could apply because of religious beliefs, etc., and that might also be taken into consideration.
Mrs. O'Rourke: Section 6 (4) (b) of the Principal Act provides that dismissal because of “the conduct of the employee” can be fair, and section 6 (6) provides that dismissal can be fair for some other substantial reason. It is a matter for the judgment of the adjudicating body concerned, the rights commissioner, Employment Appeals Tribunal or the Circuit Court, to determine whether a particular dismissal is fair having regard to all the circumstances of the case.
I know that Senator O'Toole's amendment is couched in general terms but teachers are usually vividly aware of the background to a particular case. The purpose of this amendment is to confirm that a person's behaviour in private life may not be used as grounds for dismissal. There was a widely publicised case some years ago, the dismissal of Miss Eileen Flynn, where the Employment Appeals Tribunal, the Circuit Court and the High Court held that the employee's conduct outside her employment justified her dismissal. She pursued all the avenues of redress to which she had access. In the High Court the presiding judge held that an employee's conduct outside the place of employment justified dismissal as the employer was entitled to believe that the conduct in question was capable of damaging the employer's business. In the case to which I referred, it would have involved the enrolment of pupils and the conduct of classes.
The issue was examined in the general review in preparation for this Act. There are difficulties, there is no doubt about that and Senator O'Toole recognises them. It is a debatable point, and I would be interested to hear other Senators' views. Is it preferable to leave the consideration of these issues in the capable hands of the appropriate adjudication  bodies? Is it proper and right to let such bodies decide the fairness of individual dismissals without being unduly constrained by the legislation? There are a few of us who believe that any and all actions by an employee outside the workplace should be disregarded for the purpose of dismissal unless — and Senator O'Toole recognised that — they impinged on the employment in which that person was engaged. Accordingly, certain behaviour by an employee outside the workplace could be regarded as constituting grounds for dismissal, and Senators have clearly recognised that. There is also general agreement that the actions which could give reasonable grounds for dismissal in one case may not be accepted as a basis for dismissal in another case, even within the same type of employment. Indeed, dismissals based on an employee's conduct outside work relate to a wide range of actions which may amount to a conflict of interest with the person's duty to the employer under the contract of employment, or raise doubts as to the person's continuing suitability for that kind of employment. That was implicit in Senator O'Toole's remarks.
The very complexity of this amendment requires a case by case examination if justice is to be done to the employer and the employee. I would not like to tie the Employment Appeals Tribunal's hands in considering, for instance, the fairness of dismissal of an employee because he or she carried on a business in off-duty hours which was in direct competition with that of the main employer. That is just one example. I am not making a judgment, I merely mention it to illustrate the possible consequences of accepting this amendment and to illustrate that such issues should be considered by the adjudicative bodies under the Act, in the light of the circumstances in each case. I would welcome further points of view on this as the issue is an important one of principle.
Acting Chairman: I bow to your greater expertise in this area.
Mr. O'Toole: I do not want to tie up all the discussion. It is very hard to give examples of where a person's private life might impinge on that person's work life. However, we can take an example which might be appropriate to Members. If an employee of a political party, working in the head office of that party, turned out to be politically active in a different party I am sure Senators on all sides of the House would accept there would be a clash between that person's private activities and his or her work. If a person was selling furniture, and one of the employees decided to set up a cut-price furniture business across the road, a resultant dismissal would not be unfair. Those are the clear examples and it is important to cover them.
I am really trying to deal with the moral question which normally arises when somebody does not like the relationship an employee has with somebody else, because the marriage arrangements or sexual orientation do not conform to the employer's views. I am particularly clear about this question in the area of teaching, and the Minister of State also referred to it. If teachers are in unusual arrangements they feel vulnerable. If it was dealt with in the Bill it would solve the problem. I recognise it is a difficult one to address and creates difficulties. I have tried to find a balance here between saying on the one hand that there are situations in which it would be fair for an employer to terminate someone's employment, and, on the other saying, it would be unfair for employers to sack someone because of matters which did not impinge on the person's work.
Whatever about a person's relationships outside work, if that person comes to work in the morning and does the work adequately, competently, and to the satisfaction of his or her supervisors, then there is no conflict. If the person's work, operations, or private life outside the work area are directly in conflict with, subvert, or in some way pervert, change, or make less efficient, or less effective the work of the person in their employment, then that is a different matter.
Acting Chairman: As it is 6 p.m. I ask the Acting Leader to report progress.
Progress reported: Committee to sit again.
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