Employment Equality Bill, 1997: Second Stage.

Thursday, 12 February 1998

Seanad Éireann Debate
Vol. 154 No. 4

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Question proposed: “That the Bill be now read a Second Time.”

Minister for Justice, Equality and Law Reform (Mr. O'Donoghue): Information on John O'Donoghue  Zoom on John O'Donoghue  The purpose of this Bill is to outlaw discrimination on nine distinct grounds: gender, marital status, family status, sexual orientation, religion, age, disability, race and membership of the travelling community. The scope of the Bill is comprehensive and deals with discrimination in work related areas, from vocational training to access to employment, and employment conditions generally, including training, work experience and advancement within employment. When enacted, it will give Ireland one of the most modern employment equality codes in Europe.

Senators are aware of the fate of the Employment Equality Bill, 1996, which passed all Stages in both Houses of the Oireachtas less than a year ago. The entire Bill was referred to the Supreme Court on 3 March 1997 by the President under Article 26 of the 1937 Constitution. On 15 May 1997 the Supreme Court held that three provisions of the Bill were repugnant to the Constitution. On taking office, I ensured priority was given within the equality agenda to examining the constitutional issues raised in the judgment and returning the Bill, appropriately amended, to the Oireachtas.

It is ironic that the Bill being considered today, the Employment Equality Bill, 1997, has two distinct advantages over Bills which may come before this House in the current session. It is almost identical in its provision to the Employment Equality Bill, 1996, which was considered [266] by the previous Dáil and Seanad within the last 15 months and which passed all Stages in both Houses. I hope the recency of the Seanad debate, even if the composition of the House has changed somewhat, will facilitate examination of the Bill. Secondly, the Bill has been examined thoroughly by the Supreme Court, particularly as regards a range of key and controversial provisions, and has been found constitutionally sound except for the three provisions already mentioned. I hope these facts will set a backdrop for balanced and informed deliberations in both Houses.

The Bill was found by the Supreme Court to contain three provisions which were repugnant to the Constitution. Two of these provisions are of a technical nature and were amenable to satisfactory redrafting in the Bill which is now before the House. The third provision which the Supreme Court found to be unconstitutional, that of reasonable accommodation for people with disabilities, raises profound issues, both legally and politically, about the scope available to legislators to deal with this socially important concept.

The 1996 Bill required an employer to make a reasonable accommodation for an employee with a disability unless the cost to the employer of providing the reasonable accommodation gave rise to undue hardship. The Supreme Court found that this provision amounted to an attack on the property rights of the employer under Article 43 of the Constitution. The advice I have received and the subsequent changes made to the Bill allow for retention of the disability ground in the Bill.

The Bill defines disability to include the absence of bodily or mental faculties, having chronic infectious disease, whether manifest or not, and a wide range of learning and personality conditions. The implication of the Supreme Court judgment is that an employer or a prospective employer may be obliged by law to provide a reasonable accommodation to an employee with a disability. However, the employer cannot be similarly obliged to bear the costs of providing such a reasonable accommodation. The Bill requires an employer to provide special treatment and facilities for a person with a disability unless the cost of such provision to the employer is more than a nominal cost. State supports for workplace adaptation and equipment will be additional to any cost borne by the employer.

The Commission on the Status of People with Disabilities has recommended the preparation of a disabilities Bill. The options for developing proposals for such a Bill will be examined in my Department. There is clearly an opportunity to revisit the question of statutory provision for reasonable accommodation in the context of specific disabilities legislation. For the present, I have addressed this issue constructively and fairly in the Bill being considered today.

I know certain representative groups have reservations about aspects of the Bill in so far as they relate to people with disabilities. I know too that those groups recognise that the provisions of [267] the Bill as they relate to people with disabilities represent an important step towards ensuring that Irish people with disabilities will in future be able to exercise their right to participate on an equal basis with other employees in the world of work. Research shows that households headed by people who are unable to work due to illness or disability are one of the groups in society most likely to encounter poverty and experience basic deprivation. It is estimated that the unemployment rate for people with disabilities is as high as 80 per cent. There are a variety of reasons for this unacceptably high level of unemployment. I am hopeful that the protection offered by this Bill, when it becomes law, will have a positive impact in reducing this figure and in increasing the awareness among employers of the availability of a highly motivated and reliable cadre of actual and potential employees, whose disability is entirely incidental to their value as responsible and effective workers.

The Employment Equality Bill, 1997, outlaws discrimination not only against people with disabilities, but also against eight other categories of people. Twenty one years ago the Employment Equality Act, 1977, outlawed discrimination against women. The Act sought to bring about a change for the better in the behaviour of employers mainly towards women employees. It has helped significantly to change the shape and nature of the Irish workforce in a fundamental way. This legislation will over time improve the position of other groups in the workforce including people with disabilities, members of the traveller community, older workers, people of minority races and other groups covered by the Bill.

It is perhaps difficult to believe that a relatively short time ago society took it for granted that women would occupy the lowest rung of the career ladder in most places of work and would retire on marriage or when the first child was born and would devote the rest of their lives entirely to home duties. There was a general expectation at that time, with some notable exceptions, that successful businesses were run by men, banks were managed by men, corporate boards were chaired by men, Departments were administered by men and a place at the Cabinet table was restricted to men. All that has now utterly changed. It is accepted that a woman may choose any of these professions and, should she aspire to it, work to secure a top job in business, the board room or Cabinet. The Bill being considered today has the potential to change in just such a radical way the structure of the Irish workforce as did its predecessor of 1977.

Over the past 25 years there has been a massive growth in the number of women in the workforce. Between 1971 and 1996 the number of women in the workplace grew by 212,000 reaching 488,000 in 1996. The growth in the number of women at work has accelerated in recent years. For example, the growth of 102,000 women in the workplace in the five years between 1991 and [268] 1996 almost equalled the growth of women's employment in the previous 20 years. The most recent labour force survey published by the Central Statistics Office in October 1997 estimated that the number of women at work exceeded 512,000. Women now account for four out of every ten people at work.

These changes are particularly marked in the case of married women. In 1971 only 14 per cent of the women in the workforce were married. Today, approximately half of the female workforce is married. These changes have brought about a significant shift in the structure of the world of work and have led to a growing awareness of the need to reconcile work and family life, to safeguard competitiveness and the effectiveness of enterprises while permitting both women and men to devote a sufficient amount of time to their family responsibilities.

Clearly, women have steadily increased their participation in the workforce. They have not been equally successful in attaining positions at the higher levels of the professions or in the organisations in which they work. It is a fact that women have been the victims of discrimination, both direct and indirect. There is a continuing trend for women to congregate in the professions and industrial sectors where low pay has traditionally been the norm.

The position in relation to women in many professions and enterprises indicates a lack of progress in reaching the upper echelons of these organisations. For example, in the medical profession in 1994 women represented 35 per cent of medical and 46 per cent of dental staff in health boards. In the same year, only 20 per cent of medical consultants employed by the health boards were women. The challenge now is to put measures in place which will help women build on the gains they have already secured in the labour market.

This Bill will encourage a more proactive approach to tackling the present segregation of women in the labour market which occurs both on a sectoral basis and vertically within sectors. The new Equality Authority has been charged in the Bill with statutory powers to conduct equality audits, both in employment generally and in particular sectors, so that progress towards equality can be reviewed and action plans put in place to achieve equal opportunities. These powers should be utilised to foster a consciousness among good employers of the need to work towards equal opportunities in practice. The Bill will also allow employers who wish to do so to put in place positive action measures geared towards the removal of existing inequalities which affect women's opportunities for access to employment, training and promotion.

A key issue addressed in this Bill is age discrimination. Traditionally, this type of discrimination has been a feature of the labour market. A brief perusal of the situations vacant sections of our daily newspapers will confirm that many firms have a strong preference for recruiting [269] younger workers. There might have been a sound underlying rationale for this preference in a society where skill lasted a lifetime and recruitment to a big commercial or public service institution offered a “job for life”. However, the structural change which has been taking place in the labour market no longer supports such unthinking discrimination, either on grounds of economics or natural justice.

The world of work is changing beyond recognition. The pace of this change is fast and can be expected to gather momentum. The Department of Enterprise, Trade and Employment's White Paper on human resource development estimates that in ten years time 80 per cent of today's technology will have been replaced but 80 per cent of today's employees will still be in the workforce. The growth areas for employment will be in labour intensive services and in knowledge based, hitech sectors, such as telecommunications, software and data processing. The inescapable fact is that workers today are more likely to face redundancy and the task of reintegration into the workforce than would have been the case a generation ago.

The interests of social justice dictate that older workers should not continue to suffer systematic disadvantage in the labour market as a result of the application of outmoded or discriminatory criteria for selection for employment or training. One important policy aim of the Bill is to change this type of behaviour in the interest of social justice as well as from a public policy perspective.

Age barriers to employment are EU wide. The European foundation for the improvement of living and working conditions has identified age barriers to employment in a number of EU member states. Some member states with population profiles older than our own have begun to rethink traditional policies that have tended to regard workers over 50, or even younger, as expendable. As a result, there is a growing recognition that older workers often represent highly skilled labour and valuable know-how. The research supports the view that these workers form a large pool of experienced, reliable and flexible employees.

Ireland is fortunate to have an educated and well motivated working population. Irish people have shown themselves to be innovative, hard working and determined to succeed in whatever enterprise they are engaged. Success in today's increasingly competitive international commercial arena involves making the fullest use of the talents of all employees, without regard to work irrelevant characteristics such as age, sex, disability, sexual orientation, religion or race. Enterprises that succeed in tapping the talents and skills of capable and flexible workers will inevitably succeed and have more talent at their disposal. Enterprises which ignore the skills of some workers because of a traditional world view and outdated concepts of human resource management and motivation may find themselves falling [270] behind, resulting in the enterprise and its employees ultimately suffering the consequences.

Apart from the need for economic success, we must consider the consequences of marginalisation. Employment equality legislation is one important way in which we can help to redress disadvantage. I am aware that this Bill alone will not eliminate inequality or create a perfect society overnight. That task will require proactive measures over a longer period. However, this Bill is a key initiative in the development of a more equal society. It also lays down a marker for the future. Today we are addressing these issues in the realm of employment only, but I am committed to introducing a new Equal Status Bill later in the year which will address the question of equality of opportunity in a wider context.

I wish to outline the main features of the Bill. The Bill is divided into seven Parts. 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 grounds 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 traveller community; Part V provides for the establishment of the Equality Authority which will subsume the present Employment Equality Agency; Part VI provides for equality reviews and action plans and for a review of legislation by the Equality Authority and Part VII provides means of redress and compensation for persons who might have suffered discrimination.

Part I of the Bill — comprising sections 1 to 5 — provides for definitions — section 2; the powers to make orders and regulations — section 3; expenses — section 4; and the repeal of the Anti-Discrimination (Pay) Act, 1974, and the Employment Equality Act, 1977 — section 5. Section 2 contains the necessary definitions. Some definitions which should be noted are: “contract of employment” covers all employees in both the public and private sectors as well as workers employed through employment agencies; “disability” is broad enough to give protection from discrimination to all people with a disability and “family status” encompasses both elder care and child care responsibilities.

Part II comprises sections 6 to 17 of the Bill. Section 6 sets out the grounds on which discrimination is prohibited. They are gender, marital status, family status, sexual orientation, religion, age, disability, race and membership of the traveller 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 and promoting or regrading 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 [271] by providers of vocational training. Section 13 prohibits discrimination by trades 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 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 — section 7; the making null and void of provisions in collective agreements that are discriminatory — section 9; general exclusions from the provisions of the Bill where a person is unwilling, unsuitable or unable to perform the duties of the post — section 16 — and finally where acts are done in compliance with statutory requirements — section 17.

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; and an exemption for personal services, such as the care of an elderly or incapacitated person. Finally, there are limited exemptions for the Garda Síochána and the prison service for purposes related to privacy and decency, the control of violent 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 traveller 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 [272] of people with disabilities, people above the age of 50 and members of the traveller 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 age related pay. The section also permits the setting of a maximum recruitment 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 provided that such provision would not give rise to a cost, other than a nominal cost, to the employer. 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 or race 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 grounds.

Part V, consisting of sections 38 to 61, subsumes the Employment Equality Agency into the new Equality Authority which is established by section 38. Section 39 outlines the functions of the authority which include, inter alia, working towards the elimination of discrimination and promotion of equality of opportunity.

Sections 40 to 50 deal with the appointment of the chairperson, vice-chairperson and ordinary members of the board of the authority; the arrangements for meetings and business of the authority; the appointment of the chief executive officer and staff of the authority; and some standard general provisions for the operation of the authority.

Sections 51 to 53 deal with the accounts and audit of the authority, annual reports, and the grants and borrowing powers of the authority.

Section 54 empowers the authority, following appropriate consultation, to develop codes of practice for the elimination of discrimination and the promotion of equality of opportunities in employment. The new codes of practice will be admissible in evidence and taken into account in determining any relevant case.

Section 55 empowers the authority to engage in research and information activities. Sections 56 to 61 provide that the authority may conduct an inquiry into discrimination and related matters.

Part VI consisting of sections 62 to 67, gives a new statutory power to the authority to carry out equality reviews and devise action plans —[273] sections 63 to 66 — and review equality legislation — section 67.

Part VII, consisting of sections 68 to 99, 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 72 allows for binding mediation in certain circumstances.

Section 71 is one of the key provisions of this Part. It 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 71, 77 and 78. The other key provision is section 76 which allows the director of the court to 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 year time limit on the backdating of any compensation or arrears of remuneration — section 76(3). This limit on backdating is the maximum such limit enshrined in the generally applicable Statute of Limitations.

Sections 70 and 75 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 88 to 91 give 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 cooperate with an investigation.

Under section 79, the Equality Authority is empowered to refer disputes to the Director of Equality Investigations. The authority may also refer a case to the Director on behalf of an individual where it would not be reasonable to expect an individual to refer the case because, for example, of the complexity of the case or because of the individual's fear of victimisation.

Sections 80 and 81 empower the authority or a person affected by a collective agreement to refer the agreement to the Director or, on appeal, to [274] the Labour Court where it is considered that the agreement contains a discriminatory term or does not provide for equal remuneration.

Sections 85 to 87 allow a person who has been awarded compensation under the Bill to enforce the award through the Circuit Court if the employer fails to make payment within a specified period.

Sections 92 to 94 deal with offences under the Bill and with certain incidental provisions. Sections 95 to 99 deal with supplementary issues such as obtaining compensation from one source only, empowering the Director of Equality Investigations to strike out cases which are not being pursued and redressing procedures for the Defence Forces.

This Bill is a core element in my Department's strategy to develop a framework for equality on a broad front. It is the first but nonetheless a necessary step in the process of the elimination of discrimination.

Senators can be assured that I will be appreciative, as always, of all constructive suggestions for improvements to the Bill which they may put forward. What is required is a law which works and which provides protection for those whom it is intended to protect.

Mr. Connor: Information on John Connor  Zoom on John Connor  I welcome the introduction of the Second Stage of the Bill in the Seanad. It is unusual for major pieces of legislation to be introduced in this House and Members appreciate the Minister's decision to initiate the Second Stage of this Bill here. I am sure that it will generate a lively and comprehensive debate. The debate on the 1996 Equality Bill lasted from October 1996 to April 1997 and was examined carefully in both Houses. That Bill failed, unfortunately, on three constitutional grounds, perhaps because legislators were trying too hard to protect the interests of disabled people in the workplace. The 1996 Bill was found, in three places, to offend against private property rights.

We do not have a great reputation for employment equality. The reforming Government of 1973-77 passed a large corpus of anti-discrimination legislation. Little has been done since. Despite the good work of Michael O'Leary, who was Minister for Labour in that Government, a great deal of hidden and apparent discrimination persists. Flagrant violations of the principles of equality are found throughout the workplace. Even the public service is not free of inequalities. Women and disabled people are the principal sufferers. Race, family status, age and membership of a minority group influence a person's success in gaining employment. The 1977 Act improved the situation for women but left many areas untouched and, despite our booming economy, inequality and downright discrimination persist. In this and other cities an applicant's address will affect his chances of success. His age and length of time in unemployment are also important. Many newspaper job advertisements specify the [275] age of the person required. These are all examples of discrimination.

The most recent figures show that there are 250,000 people with disability in this State. This represents between 7 and 8 per cent of the population and an even greater percentage of the work force. All studies on this subject are agreed that a person with disability is less than half as likely to get a job than an able bodied person. The Minister has told us that up to 80 per cent of disabled people in Ireland are unemployed. This is purely and simply because of the attitude of employers to them. Legislation will not easily change a culture of discrimination but it can help to create an environment in which deeply-seated attitudes are addressed and changed. I hope that this Bill will affect many of the cultural prejudices against the employment of people with disabilities which persist.

The nature of work is changing and the pace of economic activity is quickening. We must learn from international examples such as Japan, the United States and Germany, where there is a more enlightened and flexible attitude to work practices. We must take every possible measure to ensure our workforce is deployed in an efficient manner. Every imaginable sophistication is employed, nationally and internationally, to get ahead of one's competitor and to ensure the abilities and talents of the workforce. Too many employers use ability neutral characteristics against people in relation to their employment. These characteristics include sex, sexual orientation and age and are a bar to promotion and the delegation of responsibility and authority. This must end. I welcome what the Minister said about this problem, which the Bill attempts to address.

Those in authority in the past and present have done untold injustice to employees because of perceptions about them — because they were women, gay or lesbian, because of their family background or because they were regarded as “past it” in terms of age. These prejudices resulted in the failure of many businesses and on a national basis retarded economic and social progress, the creation of jobs and innovation in industry and employment. The law allowed these prejudices to exist and flourish in too many areas of work.

Ability neutral characteristics were used to frustrate people in realising their full potential at work. This had a bad effect on the person, the firm, the Government Department and, ultimately, the country.

Pay discrimination remains a problem in the EU, even in the most socially and economically advanced countries such as Germany and France, where women still suffer from major pay discrimination. Despite a range of measures in the past 20 years aimed at equalising pay for work of equal value done by men and women, women still earn significantly less than men, especially in the private sector. The difference is the extraordinary [276] figure of over 20 per cent on average. While much of that difference is attributed to length of service, experience and working hours, the majority of the differential relates to straightforward discrimination against women in the workplace. I hope this Bill will do enough to get rid of this problem.

When the Minister spoke about parental leave last Tuesday, he mentioned that over 55 per cent of new jobs over the next five years will go to women. This is a surprising but welcome figure. It places another responsibility on us. If 55 per cent of new jobs are to be taken by women, one must ensure the elimination of the significant residual element of pay discrimination. We should seek the assistance of our EU partners, and the Government should ensure the issue is always on the EU employment agenda. We should harmonise our efforts to eliminate discrimination across the community.

Women have done better in the economic boom by getting almost 20 per cent of new jobs. However, too many of these jobs are low paid, require little skill and are part-time. Many of the jobs at the lower end of the market are offered to women, which explains much of the pay discrimination.

These issues are of concern not only to the Government or employers but also to the trade union movement. I was an active member of a trade union and I know how they work, although I have not been a member for 16 or 17 years. Trade unions need to do more in leading the fight to eliminate discrimination in pay and because of disability, sexual orientation or religion. Much of this discrimination exists to a small extent, often undercover. Trade unions are a major player in finding a solution to these problems. They often do not address them and are preoccupied with the issue of pay for their members who are in employment, rather than increasing pay for everyone. I am not saying trade unions ignore issues of discrimination but they do not address them to the extent they should. I hope this advice is taken by trade unions, the Minister and employers. We will only change this culture through a collective effort.

A job is no longer for life and everyone in the job market can expect to change jobs, on average, three or four times in 40 years. The day of a job for life in the public service or with a particular firm no longer exists. The day of a single breadwinner being the chief earner in a home is coming to an end. In many instances, there is a need for two members of a family to be in employment in order to sustain a household. That pattern is becoming increasingly prevalent.

I was elected to the House from the Agricultural Panel and I represent a rural constituency. Work practices have changed dramatically in rural areas during the past 20 to 25 years. It is often the case that farmers' wives take up a second job to sustain their families and farmers themselves take up farm employment to sustain [277] their enterprise. These issues are related to the nature of work and how we approach and legislate for it. I hope we are abreast of the pack on these issues because we are often behind it, which can lead to further problems.

As stated earlier, I welcome the Minister's announcement on Tuesday last confirming that the Government intends to introduce parental leave. However, having read newspaper reports, it appears he is taking the credit for this decision. The Minister stated he had succeeded in having funding for this proposal included in the midterm review. I must inform him that the groundwork on this issue was done by his predecessor in the area of Equality and Law Reform. The midterm review commenced last July so no one is fooled by the Minister's statement. The preparatory work on this issue was carried out during the previous year. I compliment the Minister's predecessor in Equality and Law Reform, Mr. Mervyn Taylor, for carrying out that work and making it easy for the Minister to make the announcement at Dublin Castle on Tuesday that parental leave would be introduced.

I welcome the form in which parental leave will be introduced, namely, that people will be entitled to three months off work to care for children under eight years of age. This is a flexible child care measure whereby employees need not take the three months together and they may take parental leave in the form of days off during the period it is available to them. I call on employers, particularly the Government, the country's chief employer, to be flexible with employees because many parents will decide to exercise the right to take parental leave.

The issue of the level of pay, if any, to be paid to people who take parental leave remains unresolved. I may be wrong, but I understand the Minister's officials stated that a provision should be made for a payment, or its equivalent in kind, for one of the three months of parental leave and that no payment should be made for the other two months. Many people will find this unsatisfactory and it requires further examination.

Those who intend to avail of parental leave will do so for the social good of the country. This represents a kind of investment in social stability. People with children under eight years of age need to take time off to spend with them. A great number of social problems are generated because of the lack of parental presence in the home. Many young people have problems which are directly related to the fact that they did not have a close relationship with their mother or father because, for economic reasons, their parents had to be away from home during their children's formative years.

If people are given the right to take parental leave, it is unfair they should not have an income for a three month period. I am open to correction but it appears the Minister believes that payment should be made for at least one of the three months. Will the Minister clarify the position when he replies to the debate? Some form of continuous [278] payment should be made to parents on parental leave because they will be carrying out an important social service which will pay dividends in the future. I hope the Minister will give serious consideration to these points.

The Irish Congress of Trade Unions has a number of reservations about the Bill and it wrote to the Minister of State at the Department of Justice, Equality and Law Reform, Deputy Mary Wallace, and Members in that regard. The ICTU made a number of points which I will be obliged to examine closely in terms of tabling amendments. I will read a number of the points into the record and I hope the Minister will respond to them in his reply . The ICTU's letter relates to the Supreme Court judgment on the three points in respect of which the previous Bill was found unconstitutional. It states:

In considering the text of the Supreme Court Judgement Congress notes that the judgment:

(i) does not mention the concept of ‘reasonable accommodation’i.e.

that an employee should do all that is reasonable to accommodate the needs of a person with a disability.

The Judgement refers specifically to special treatment or facilities.

The concept of ‘reasonable accommodation’ cannot be defined purely as the provision of special treatment or facilities as the provision of certain treatments or facilities would not be considered reasonable on cost or other grounds.

It can therefore be assumed that this concept is not repugnant to the Constitution and that there was no need to omit the concept from the revised Bill.

(ii) finds fault with the imposition of all costs associated with the provision of special treatment or facilities on employers without the payment of compensation by the State. In its Judgement the Supreme Court took no account of the range of existing State supports which currently meet some of the costs arising from disability.

The Supreme Court Judgement does state that ‘the Bill has the totally laudable aim of making provision for such of our fellow citizens as are disabled.’ Clearly it is in accordance with the principles of social justice that society should do this, but, prima facie, it would appear to be that society should bear the cost of doing it.

These are some of the more important points made by the ICTU and I hope the Minister will respond to them in his reply.

Members on this side of the House welcome the Bill. I have no doubt that on closer examination we will discover certain sections require improvement. However, we will discuss that on Committee Stage. This Bill was introduced and [279] enacted by the previous Government, but unfortunately it was found to be unconstitutional. It is a significant measure in combating inequality and discrimination in the workplace. The Minister correctly stated that, when enacted, the Bill will provide a legal code in respect of the workplace, discrimination and anti-discrimination measures which is among the best in Europe. I congratulate the Government on bringing forward the Bill intact -with the exception of those provisions found unconstitutional by the Supreme Court for re-enactment. As already stated, with the exception of a number of sections requiring amendments, we agree with and welcome the Bill.

Mr. L. Fitzgerald: Information on Liam Fitzgerald  Zoom on Liam Fitzgerald  Cuirim fáilte roimh an Aire. Tá sé sa Seanad inniu agus bhí sé anseo inné le Bille eile. Molaim freisin go bhfuil an t-Aire toillteanach Bille tábhachtach mar seo a leagadh os comhair an tSeanaid roimh dul os comhair na Dála.

I welcome the Minister and find it laudable that he is willing, anxious and determined to bring important legislation to the Seanad for initiation. While it is true that in the past Bills were initiated here, never have as many Bills of such serious and significant import been initiated by a Minister over such a short period.

I empathised with much of Senator Connor's contribution but it appears from some of his remarks that we have now reached an extraordinary situation where the Minister for Justice, Equality and Law Reform is expected by the Fine Gael Party to take the blame for everything and credit for nothing. It brings to mind stories I read as a child about Australia where long ago whenever there was a robbery the motto was “Blame the Kellys” whereas in Ireland today the motto seems to be “Blame the Minister for Justice, Equality and Law Reform”.

I compliment the Minister as it was perceived that he only had to add a few lines to the previous legislation and reintroduce it. That was not the case and a great deal of work by the Minister and his officials has gone into it.

Mr. Connor: Information on John Connor  Zoom on John Connor  They were wasting their time because it is identical to the previous Bill.

Mr. L. Fitzgerald: Information on Liam Fitzgerald  Zoom on Liam Fitzgerald  The Bill replaces the Employment Equality Bill, 1996, which passed all Stages in the Houses of the Oireachtas on 26 March 1997. Senator Connor said it was enacted, but the President refused to sign it and it is not on the Statute Book. The President, after consultation with the Council of State, decided to refer the Bill to the Supreme Court to have its constitutionality determined. The court held that three aspects of it were repugnant to the Constitution and the 1997 Bill replaces them. Since the previous Bill was examined in the Supreme Court, the new one can be deemed to be constitutional.

[280] This is significant legislation outlawing discrimination in employment on nine distinct grounds — age, race, religion, family status, marital status, gender, disability, sexual orientation and membership of the travelling community. It is broad ranging and comprehensive in scope dealing with all employment related areas, including access to employment, vocational training, trades unions, equal pay for equal value, general working conditions and covering collective agreements as well as discriminatory advertising in newspapers, on the Internet and through all other media forms.

In many respects, it is ground breaking legislation, particularly in an EU context. The British, for example, have race relations and sex discrimination legislation while in Northern Ireland there is also legislation prohibiting discrimination on religious grounds. We must look as far afield as Australia to find legislation as broad ranging in scope as this Bill. Once passed, it will give Ireland one of the most modern equality codes in Europe.

Irish society, whether we like it, has been changing radically in recent years and these changes are reflected in a profound way in the workplace. Until recently, places of work were populated in the main by married men with permanent jobs, most of whom regarded them as jobs for life. There was little need for change, adaptability or flexibility and things remained the same in the workplace. However, the present day workplace bears little resemblance to that.

The evolving work environment presents a wide variety of employment options, including frequent job changes, temporary jobs and work, part-time work, job sharing, flexi-time, and is populated by women and men, able bodied and disabled, who all demand their right to a full role in economic life, including a proper place in a more flexible workplace.

This fluidity in the workplace demands a much more open approach to issues, such as changes in family status, ethnic and religious diversity and sexual orientation. Minority groups become more visible but, of course, they also become more vulnerable. Equally, since fewer people are guaranteed a job for life, there are more older people than before seeking work. With the workplace becoming much more fluid and complex the issue of employment equality becomes not only an economic imperative, but must be regarded and dealt with as a fundamental human right. Every individual has a basic human right to seek and obtain gainful employment and to progress through promotion in it. It is imperative that our laws prohibit discrimination based on personal characteristics which are unconnected with work performance.

Discrimination in the workplace is not an illusion or a theoretical postulation; sadly, for too many people it is a reality. Labour force surveys show that older workers, once unemployed, are likely to remain so for longer than their younger counterparts. The report of the Task Force on [281] Long-Term Unemployment shows other motivational factors at work also. One of the studies showed that two out of three people who were long-term unemployed and over 45 years expected never to get a job again. Frighteningly the figures show that if an individual is two years unemployed and over 45 years, he or she has a one in ten chance of being re-employed. One does not have to be a trained analyst to work out that this is discriminatory.

Another area of discrimination which is unfortunately and regrettably widespread is on the grounds of disability. A 1991 official report by the European Commission concluded that people with disabilities in Ireland represented 7 per cent of the population. The Minister referred to the figure today as being 300,000. A labour force survey conducted by the Commission two years earlier showed that “the chances of someone with a disability being unemployed are significantly higher than someone without a disability”.

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

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

In this regard, it is shameful to note that in recent years, and in times of so-called enlightenment and greater awareness of the needs of minorities in society, the disabled continue to enjoy little more than derisory back-up and support from the State in some instances to enable them to play a full part in the economic life of the country, although in other aspects of their lives they were responded to reasonably and generously.

Fulsome tribute must be paid to the many voluntary organisations and bodies who have done trojan work fighting relentlessly for the needs and rights of their disabled members. The Government is concerned to ensure the fruits of the [282] economic boom and prosperity are availed of to promote the rights of our disabled who constitute a significant minority and to provide them with the opportunities to participate fully in the workplace as well as in all other aspects of society.

I am well aware of, and commend, announcements and decisions in recent months by the Minister for Justice, Equality and Law Reform and other Ministers to provide additional resources and funding for all areas of disability. I welcome the Minister's decision to establish a national disability authority. However, substantial additional resources will be needed, through grant aid and other means, to ensure that the equality of opportunity for access to employment and training is available to the disabled on the same basis as to any other group in society. That is the core of the issue. I realise that this Bill is also about outlawing eight other areas of discrimination and that it would be unrealistic to expect that the Bill is the appropriate vehicle through which provisions can be made in this area, yet I know the Minister is committed to ensuring that all of the nine areas he defined are treated equally and effectively. I have no doubt, therefore, that he will convey to the Government his and our concern about this area of human rights and social justice in the workplace.

Discrimination against women in the workplace was tackled in legislation as far back as 1974. It followed a long history of degradation, deprivation and discrimination against women. The Suffragette movement was started in the 19th century with a view to taking up the cudgels to fight for the rights of women, who, some would say, were second class citizensothers would say they were fourth, fifth, sixth and tenth class citizens. They were expected to be there, shut up, do what they were told and be at the whim of others in society. That powerful movement took off and became a potent force in society. Despite the protests, public meetings, the sense of awareness which was created and the subsequent so-called years of enlightenment, it took until 1974 to enact the first legislation on the matter. In 1998 it is heartening to some extent, although we should not over exult in it, that women will be paid an equal wage for equal work from a modern Government reflecting a modern society.

Since the first employment equality legislation was presented to the Houses of the Oireachtas in 1974, the position of women has improved in a number of respects. For example, two women Senators contributed to that first debate. One, Mrs. Mary Robinson, subsequently went on to become President of Ireland. The other, Ms Evelyn Owens, became Chairman of the Labour Court. Both of these positions would have been regarded as the exclusive domain and preserve of men in 1974.

Unfortunately, these and other celebrated success stories about the progress of women's equality are more than matched by equally celebrated examples of different kinds of discrimination against women. For example, in my public [283] life over the past 17 years I am always amazed at how few women succeed to senior posts in local authority employment. Invariably councils and corporations have been and are top heavy with men. What one sees is a rather lopsided pyramidal structure. After all, it is 25 years since the marriage bar was abolished and 21 years since the Employment Equality Act, 1977.

It is timely and appropriate to examine the reason or reasons which give rise to this phenomenon. Are women making conscious decisions not to contest senior management positions within some of these organisations? Is it that there are selection procedures militating against them? Is it a combination of both or is it something else? In the interest of promoting equality in employment opportunities, answers must be found to these questions. I have taken but one example, that of the local authorities, but it would be most unfair and unjust to single them out because they do not have a monopoly in this regard by any means. The same is true of many other private as well as public organisations where women are significantly underrepresented at boardroom level and in key decision making roles. Indeed, it is patently obvious that men seem to dominate even middle management and supervisory positions. Looking at the other side of it, the traditional segregation of women in the low paid sectors, such as the service, clothing and factory assembly sectors, still applies today.

The examination of pay differentials between men and women in the workplace shows up some interesting findings. In 1994 an ESRI study entitled “Male-Female Wage Differentials: Analysis and Policy Issues” examined the earnings of men and women workers across the board. The findings showed that women's earnings were only 80 per cent of those of men. While it is correct to state that half of the difference here could be accounted for by factors such as skill, hours worked, experience and length of service, the rest of the difference could only be accounted for as a result of discrimination. In the manufacturing industry, for example, the situation seems to be even worse for women because their earnings are only 70 per cent of those earned by their male counterparts.

In recent times there has been a significant increase in the number of married women entering the workforce.

I know, however, that the Minister is acutely aware of the need to facilitate the reconciliation of work and family life. In addition to this legislation, the Minister is advancing action to help parents at work — other Senators made reference to the parental leave Bill, for example — and I commend him for that, irrespective of the kudos grabbing exercises elsewhere. He is committed to it — I am very serious in saying that — and I am assured it will be enacted this year. The Minister and the Government are committed in Partnership 2000 to make proposals for a national framework for child care, which is equally important [284] and relevant to that whole area. A significant feature is that we will depend more and more on the input of married women to the workforce if we are to sustain growth as the numbers of new young entrants to the workforce decrease in the next century.

Part III of the Bill defines sexual harassment as unlawful in a specific way. This is a new provision and it is important to stress that it is being included for the first time. It is my understanding that it is new also in terms of EU legislation. As I am not aware of such provisions in the legislation of other member states, I stand open to correction. It is quite obvious, from the detailed way in which the section deals with this ongoing problem in the Irish workplace, that a great deal of attention has been given to recent domestic case law. The provision in the section making an employer, employment agency or vocational training body liable for sexual harassment by their employees, clients, customers or other business contacts if they do not take reasonable steps to prevent such harassment is essential to ensure employers face up to their serious obligations here in endeavouring to ensure a sexual harassment free environment. The definition of this new offence in the Bill in such a detailed way is to be welcomed. It represents a determined effort to change the ethos and culture of the workforce in this respect. No doubt the Bill will be very successful in that regard.

Part III also deals in detail with the requirements of the EU equal pay and equal treatment directives which apply to gender discrimination. It repeals two previous Acts in that regard.

Positive action measures, which section 24 of the Bill allows an employer to put in place, are also to be commended because they promote equal opportunities, particularly where those are geared to remove existing inequalities which affect women's opportunities in terms of access to employment, vocational training, promotion, etc.

Part IV of the Bill deals with new discriminatory grounds, and I welcome the fact that the Minister has included that in such detail. The principle of the entitlement to equal pay for work of equal value is established from the date on which the legislation comes into force. The Bill provides that every contract of employment will have an equality clause and discrimination, both direct and indirect, is outlawed.

Harassment in the workplace, which has come to the fore again in recent court cases, is outlawed in relation to any of the new discriminatory grounds. It refers to harassment by an employer, employee, client, customer or business contact. It is important that that is properly defined.

Another important aspect of the Bill is addressed in Parts V and VI, that is the establishment of an Equality Authority to replace the Employment Equality Agency. The new body will have a key promotional role to ensure employers, employees and others covered by the Bill are aware of their rights and obligations, and in the promotion of equality of opportunity in [285] employment on the nine discriminatory grounds covered by the Bill.

Part VII of the Bill provides for the establishment within the Minister's Department of a new statutory office of Director of Equality Investigations. The directorate will provide redress for people who feel that they have been discriminated against under this legislation and there is provision for substantial awards where cases are substantiated — two to three years pay or arrears of pay are the typical maxima applying here. The Minister dealt with that in detail.

To fully appreciate the significance of the provisions in Part IV of the Bill for non-gender positive action geared specifically towards the integration into employment of people over the age of 50, account must be taken of demographic trends. We, in Ireland, are facing an aging workforce and some EU member states will be in a worse position in the near future. It is important, therefore, to realise that, apart from the social equity, economic and human rights issues involved, it is in the interest of public policy that employers and employees be encouraged to offer opportunities to older employees to stay on in the workforce for as long as possible. This development would reduce the burden on the smaller younger workforce that will emerge early in the 21st century.

Mr. Norris: Information on David P.B. Norris  Zoom on David P.B. Norris  I wish to share my time with Senator Henry.

Acting Chairman (Mr. Finneran): Information on Michael Finneran  Zoom on Michael Finneran  Is that agreed? Agreed.

Mr. Norris: Information on David P.B. Norris  Zoom on David P.B. Norris  I welcome this Bill, in general, just as I welcomed the previous incarnation of the Bill in the last Seanad. However, as on that occasion, whereas 97 per cent of it is splendid, there is a remaining hard nugget of 3 per cent that I wish to address.

No doubt the Minister and his advisers have had the opportunity to look at the previous debate. They will have seen the nub around which my concerns revolve; principally the sections on disability and section 37 — the exemption of certain institutions from this provision.

I want to concentrate on those two points because they continue to disappoint me. I would like to say, somewhat light heartedly, that I think I have done the State some service in terms of the age situation. I have withdrawn from university employment thereby freeing up a job for a younger person.

As regards the question of sexual harassment, I am not sure that Senator Liam Fitzgerald is correct in saying this is an entirely new section introduced by the Minister. As I understand it, it was already in the Bill. I remember a debate on that issue where I managed to get some language changed slightly so that it was an “unwelcome advance”. I remember the debate clearly on this question and it seemed to me that, as originally [286] drafted, “advance” was a rather joyless term. It would almost have made it impossible for somebody to ask a colleague out for a dinner date. The Bill is better for that change having been made.

Because I have already put much material on the record during the previous debate, I will not rehash it because that would be tedious and foolish. However, I will rely with gratitude on a submission from the Free Legal Advice Centres — FLAC — and the Coolock Community Law Centre. I refer in particular to the question of language, in which I know the Minister is interested. FLAC preface all their remarks by saying they think it a pity that this legislation, which deals with a complex matter, should be reflected in complex and sometimes obscure language. They make the good point, with which I know the Minister is in tune, that since these areas deal so directly and vitally with people's lives and conditions of employment, they should be capable of being understood by ordinary people. The plain people of Ireland should have access to the meat of this legislation.

Since various groups have found this to be an opaque Bill, perhaps necessarily so, I am sure the Minister will undertake an information campaign to ensure the general public is made aware of its provisions in simple terms.

Some of the most interesting aspects of the Bill are those from which this House is precluded from having a direct intervention. There is no question but that this will cost the State money, yet the Upper House is not allowed to introduce amendments which can incur a charge upon the Exchequer. I am sure the Minister will accept that if the provisions of the Bill are to be taken seriously, they will also have to be costed and supported by money from the Exchequer. I have no doubt the House will support the Minister in getting this money from his colleagues in Government.

I wish to examine a few definitions. Section 35(4), as reintroduced, now effectively allows employers to discriminate against persons with a disability where employing them or facilitating their participation in the recruitment process would give rise to costs other than nominal costs.

A number of bodies have contacted me on the question of what constitutes nominal costs. It appears to allow people a wide leeway to discriminate if they can claim that this is a little expensive, but what is “nominal”? One definition describes nominal as “minimal in comparison with real worth or what is expected; [in other words] token”. As a result it could appear that the protection offered to persons with disabilities in this section is itself merely a token or gesture. It was open to the Government to take a far more active approach in terms of the Supreme Court judgment.

Some interesting anomalies arise from this and it is clear that a two tier situation may emerge for employers. For example, an employer who has already installed facilities for disabled people to be employed is thereby required to reach a higher [287] standard than somebody who did not bother to install such facilities at all. That seems unfair and it appears to be a disincentive. If I were an employer operating on tight margins and I made a gesture by employing disabled people, I could place myself in a situation where I had to go further and further, while one of my competitors might be ruthless and not bother to do so. The competitor, however, would not be subject to this type of incremental implementation of civil rights for disabled people. For that reason, it is important to examine this aspect in principle.

The Government was, of course, constrained in its approach by the decisions arising from the judgment of the Supreme Court with regard to the question of the rights of private property. However, I well remember a Fianna Fáil Minister saying, with regard to planning, that the rights of property under the Constitution should not be regarded by any political party as sacrosanct and they should be subject to further possible modification. This is the case. If it is necessary in the light of these judgments to further modify and qualify the rights of property under the Constitution then we should be prepared to do so.

The point is made by the Coolock Community Law Centre that it appears to be open to the legislature to place a burden upon the State as an employer to bear the cost of facilities necessitated by employing persons with a disability, without conflicting with the Supreme Court judgment. In its view this is an option which should be exercised and, while a restricted burden may be placed upon private employers, there should be no reason to protect the State against the cost of making its places of work properly accessible to the disabled. I cannot disagree with that.

If we are trying to set a headline, then the State, as an employer, must be at the front line and must institute the kind of practices in which it expects employers in the free market to engage.

If we are serious about this matter we should make it a condition of public works contracts that people tendering should be able to satisfy a requirement that their workforce contains people with disabilities, otherwise it is all a farce. It is not acceptable if State authorities circumvent this kind of legislation in various ways.

We must also examine tax incentives, which have been introduced both in the United Kingdom and the United States. For example, the US Federal Tax Code was amended to provide direct incentives and aid in implementing the American with Disabilities Act, 1990. Three specific incentives were provided for, the first being a tax credit for small businesses that provide access to persons with disabilities. This could be something as simple as making door handles and light switches accessible to people in wheelchairs. The average cost of making such adjustments in the United States is $500 or about £300. We ought to be able to bear that burden if we are serious about alleviating the situation of people with disabilities.

[288] The second incentive involved a special deduction for expenditures to remove architectural and transportation barriers that restrict the elderly and people with disabilities. The third incentive was a tax credit for businesses that hire persons with disabilities who are undergoing or who have completed vocational or educational training.

I support the call in the 1996 report of the Commission on the Status of People with Disabilities for the introduction of another disabilities Act. Some of these areas of concern could be addressed if the Government gave a commitment to introduce such an Act. Section 16(1), which deals with the retention of employees who are no longer competent, is an update of a section of the 1977 Act where an employer is not obliged to retain somebody who refuses to undertake duties attached to a position. It considerably expands on this notion and makes the situation more disadvantageous to the employee. It could be interpreted as allowing an employer to dismiss an employee currently in employment on the basis that he or she randomly decides that the person is no longer fully competent. This may constitute an unjustified interference with unfair dismissal legislation and has no place in the Employment Equality Bill. For example, could an employer argue that an employee is no longer capable of undertaking the duties attached to the position because they are out on sick leave? The Minister should consider this.

I am concerned about the sexual behaviour of employees. I am sure the Minister is aware of the debate we had about reliable information. What constitutes reliable information? It is a vague term to justify removing somebody from employment. From where does the information come? What kind of evidence must be brought forward? Should a criminal conviction be used to bar somebody in perpetuity from employment? I can understand a graduated approach to this where, for example, a swimming coach or someone in sport who is convicted of an offence against children will not be employed again in the same circumstances. However, does this mean they cannot be employed as a bread delivery person, in a newsagents or a tax office? One cannot reasonably remove somebody completely from the possibility of employment even if he or she had committed an obnoxious crime.

Equal pay cases are not yet funded through legal aid. This is a gap in the legislation. The Criminal Justice (Legal Aid) Act, 1962, gives the Minister power to extend legal aid but this has never been done. That is a pity as it should be done. The Employment Equality Agency sometimes represents clients but it is understaffed and underfunded, as is FLAC.

I am disappointed section 37 is still included in the Bill. We are addressing discrimination on nine grounds, yet we specifically exempt some of the most significant employers, particularly churches, hospitals, religious institutions, etc. I am also disappointed that there is no attempt to define what [289] constitutes religious ethos. How do we know when an ethos is being offended against? The only definition is in a document entitled Governance of Schools, where it is defined as being “in accordance with the doctrines, moral teaching, traditions, practice and customs of the Church as defined by the Church from time to time”. That is an extraordinary narrow and sectarian definition.

What is the practice of the Church? The practice of the Church over the past ten, 15 or 20 years has been to protect child abusers. Is this the ethos of the Church? I am not speaking of single instances but of cases of multiple child abuse which we hear about every day on the radio and television where the Church officially and consistently operated to protect such abusers, to retain them in employment and to move them around. It did not provide information to the parents or address the situation. That is the ethos, in practice, of the Church. Yet, simultaneously, it claims the right to dismiss from employment people whose beliefs, ideas or whose style of personal private behaviour offends against its ethos. That is Swiftian nonsense.

Under this legislation, Eileen Flynn could still be dismissed because she was giving succour to the children of a previously married man with whom she was living. She was a good mother. She was dismissed because that came in conflict with the ethos of the Church. At that time the Church was supporting, succouring, harbouring and nourishing people who were violently attacking children. This woman was nourishing them in a good home. That is not tolerable. This situation could continue under this legislation. I do not accept that and I will table amendments on Committee Stage.

I and my colleagues, including Senator Henry, made these points when the Bill was first introduced. We were delighted when the Bill was referred as being unconstitutional to the Supreme Court by the President. We thought she had read what we had said and understood the arguments. However, it was referred on other grounds. It seems that this Bill is unconstitutional on the grounds that it interferes with the beliefs and life — style of people. When we look at the large involvement of the Church in the employment of teachers, for example, we realise how considerable is this problem. I appeal to the Minister to look kindly on our amendments.

Article 44.2.1ºof the Constitution states:

Freedom of conscience and the free profession and practice of religion are, subject to public order and morality, guaranteed to every citizen.

Those rights are not protected by this Bill despite the fact that surveys — I will put them on the record when we debate our amendments on Committee Stage — clearly demonstrate that the public's attitude to employing people who live together without the sanction of marriage has completely changed from 30 years ago. The same is true in terms of employing people of a homosexual [290] orientation. The test is are they good teachers and responsible and caring people, not what they do in the privacy of their homes. It is a colossal impertinence for an institution whose own members have behaved so badly on occasions to seek to take to itself a block responsibility to discriminate.

I do not wish my comments to be taken as a wholesale attack on the Catholic Church, its teachers, priests, brothers or nuns. I know the wonderful work a large number of them have done and we are greatly in their debt. It is tragic that all priests, nuns and brothers should be tarred with the same brush. The phenomenon is so widespread. I am not just talking about the phenomenon of sexual abuse which is dangerous in itself but also the phenomenon of concealment by religious authorities in seeking to protect its own power which makes the situation particularly dangerous.

Dr. Henry: Information on Mary E.F. Henry  Zoom on Mary E.F. Henry  I thank Senator Norris for sharing his time with me. I am delighted the Minister has reintroduced this Bill so rapidly. We put a great deal of time and effort into our discussions on it last year. As Senator Norris said, we all thought the President had referred it to the Supreme Court on religious grounds but we were wrong as she had problems with it in another area.

It is sad that this legislation is needed because public attitudes should ensure we are all treated equally. Gender equality is the area which has been most addressed to date and enormous improvements have been made thanks to the Employment Equality Agency. I am delighted that the Chairperson of the agency, Kate Hayes, and members of the staff are in the Visitors' Gallery. It is important to recognise the work which the agency has carried out over the past 20 years. We would not be where we are without it. Legislation is important but the education of the public is also important. The agency has done an enormous amount of work in this area which I hope will continue.

There now seems to be an impetus in the area of improving gender equality. Figures for levels of female employment within the professions, which seemed unacceptable a few years ago, have been greatly improved. It was good to see that the Comhairle na n-Ospidéal statistics indicate that one in five hospital consultants are women. This is important for women who aspire to being consultants. However, it is also important for members of the public who may wish to see a woman consultant. There used to be very few female consultants in obstetrics and gynaecology. Last year, three of the eight appointments were women. I am delighted to see these improvements.

My one regret is that women in the industrial sector are still being paid 70 per cent of the salaries paid to men. They are probably paid even less in the service sector. We cannot do any more than encourage change in this area. However, it is important to introduce legislation which is strong [291] on the principle that people should be paid the same for doing similar work.

I hope that the Employment Equality Agency will be given all the resources it needs. This House cannot introduce financial amendments. However, any agency which is established without adequate resources will prove ineffective. I hope the Minister will ensure that the agency is adequately funded.

I could not understand a number of items in the explanatory memorandum to the Bill. It is important to ensure a continuity of staff between the present and proposed agencies. The word “replace” is used in the first paragraph of the memorandum. I hope this does not mean that the expertise of the present staff will be lost. They may need extra training to deal with the new areas of responsibility but the expertise which has been built up over many years should not be lost. Section 38 refers to the continuation of staff between the two agencies. Would the Minister clarify this point? The new agency will need to employ experts. To date, it has only been dealing with the issue of gender. However, areas such as disability, ethnic origin and travellers will need staff with special expertise. More research will need to be conducted and this will require additional staff. The Minister has not given details of this in the explanatory memorandum or the Bill. I hope it will be within the spirit of the new agency.

Excellent work has been carried out by the Employment Equality Agency. However, the Minister should consider allowing the new agency to hire its own staff. I am not criticising staff drawn from the Departments with responsibility for the agency. However, it would be more satisfactory if the agency could hire experts rather than taking staff from Departments. As far as I know, most State agencies have such powers — they are not provided with staff from Departments. Would the Minister address this issue in his reply?

There is a problem with access to the building housing the Employment Equality Agency. There are steps up to the building and the Minister will have to consider relocating the agency. Has this been discussed? It would be almost impossible to make the Mount Street building accessible to those who are in wheelchairs or who are unstable on their feet.

I commend the Bill to the House. I hope for continuity of staff, greater resources for the new Employment Equality Agency and an accessible building so that those covered by the legislation will be able to gain access. I hope that the Minister recognises the expertise built up by members of the board. Many of them have given a great deal of time, thought and energy over the past number of years and I hope they will be considered for positions on the new board.

I will not address the issue of religion on Second Stage. I am sorry that the Minister has not been able to change the provisions of the previous [292] Bill but this can be addressed on Committee Stage. I am delighted that the Minister has reintroduced this Bill so briskly as it is of enormous importance to a large number of people.

Ms Keogh: Information on Helen Catherine Anne Keogh  Zoom on Helen Catherine Anne Keogh  I am pleased to see this Bill before the House. I welcome the Minister and thank him for putting the Bill at the top of his list of priorities. We were all devastated when the previous Bill was rejected by the Supreme Court. None of us anticipated the grounds on which it would be rejected. The issue needs to be re-examined in terms of the priority given to people with disabilities.

This is an extremely complex Bill. It is déja vu for me as I was party spokesperson on Equality and Law Reform in the Dáil when the previous Bill was passed. There was a lengthy debate and a considerable number of amendments were tabled. Many more of those amendments were accepted in the Seanad. This may have been because of the political expediency of the day. Notwithstanding that, it turned out to be a better Bill as a result of those amendments, some of which I pressed myself.

This Bill is a considerable improvement on the original Bill. The previous debate was characterised by a desire on all sides to produce the most complete legislation possible. There was satisfaction that the Bill was a co-operative venture and, with the exception of section 37, there was very little which was adversarial about the debate.

Sitting suspended at 1 p.m. and resumed at 2 p.m.

Ms Keogh: Information on Helen Catherine Anne Keogh  Zoom on Helen Catherine Anne Keogh  I welcome the Minister for State, Deputy Mary Wallace, to the House as she has a particular responsibility in the areas of equality and law reform. The emphasis being put on equality in this Bill is very important and I am aware, from her work in the past, of how committed the Minister of State is to this. The fact that both the Minister and the Minister of State have been present in the House today is to be welcomed as is the priority being accorded to this kind of legislation.

The fact that the Minister, Deputy O'Donoghue, had placed the issue of equality legislation at the top of his list of priorities is very significant. As I stated earlier, there is an element of déja vu associated with this for me as I was my party's Justice spokesperson when the Employment Equality Bill, 1996, was rigorously debated in both Houses and a significant number of amendments made to it. The Bill before us then was an amended Bill and it was subsequently amended as a result of the finding of the Supreme Court.

The Employment Equality Bill is a separate entity to the Equal Status Bill which the Government has promised to introduce later this year. In the light of the finding of the Supreme Court and its comments on the Bill, it is desirable that these Bills stand alone and that they are not dependent on each other as was previously envisaged. [293] The Employment Equality Bill emphasises the fact that a significant contribution is now made through legislation to the fight against discrimination in employment. There is consensus on that. It was regrettable that the earlier Bill was found to be unconstitutional, particularly on the issue of disability.

I had, and still have, some difficulties with the Bill's complex nature. It is not particularly user-friendly and I made the point on Second Stage of the 1996 Bill that people who did not have legal training would find it difficult to understand. I was very pleased, therefore, to be presented this morning with a brief guide to the Employment Equality Bill from the Department of Justice, Equality and Law Reform. The guide makes the labyrinthine Bill considerably easier to follow and that is to be welcomed. One of the difficulties experienced in the area of legislation relates to its accessibility to all shades of opinion. Having had a brief look at the publication, it seems to be a simple, straightforward guide to the key provisions of the Bill. More explanatory guides should be published on complex legislation.

Senator Henry stated that it was a pity we need equality legislation at all but we undoubtedly do. The fact that this is a wide ranging Bill adds to its complexity. Of the three provisions which were found to be unconstitutional, the one which exercised us most related to “reasonable accommodation”. This points out the necessity to develop legislation in the area of disability. The Supreme Court found that the provision of reasonable accommodation for people with disabilities was unconstitutional. As the Minister stated earlier, this raises issues about the scope available to us, as legislators, to deal with the whole area of discrimination against people with disabilities. I am glad that we were, at least, able to retain the disability ground in the Bill.

I strongly support the commitment in the Government's action programme that the recommendations of the Commission on the Status of People with Disabilities would be implemented in this Government's lifetime. An important aspect of the commission's report related to legislation and the preparation of a disabilities Bill. The Supreme Court finding indicates that this matter requires legislation urgently. I know the Minister of State would support that statement. We must implement the commission's recommendations urgently and proceed with legislation on disability as soon as possible.

It is interesting to note that the 1996 Bill was prepared without the benefit of the report of the Commission on the Status of People with Disabilities. Developments occurred as a result of that report which are already being worked on. However, if we had had the benefit of those recommendations, there might have been a slightly different emphasis in this Bill. That is something which must be dealt with as soon as possible.

The employment of people with disabilities was referred to. We know how unacceptably low that [294] is within society. The Minister stated the unemployment rate was as high as 80 per cent, something which will surprise many people. None of us in this House should be because we know the difficulties attached to employing someone with a disability. Perhaps one of the reasons the employment of people with disabilities is as high as 20 per cent is quotas within the Civil Service, which are also being implemented within the public service. However, it is only a 3 per cent quota and it is something which must be worked on.

The employment of people with disabilities in the private sector is a vexatious matter and the question of reasonable accommodation must be re-examined. There are factors such as planning and development. For example, when planning is sought for a building, the local authority must insist it be accessible to people with disabilities. This is something very important which must be implemented. All legislation in the area must be combined to ensure it is not ignored.

I would like the issue of quotas or another method of achieving them examined. I have raised this before; it is a hobby horse of mine. In some EU states, if businesses and industry are not prepared to ensure a percentage of people with disabilities are employed, a penalty clause is enforced where moneys are directed into training programmes for people with disabilities. That is something which should be kept alive and I am sure the commission will examine it. I hope it can be done within the scope of specific legislation for people with disabilities.

The Employment Equality Act, 1977, which outlawed discrimination against women, had a profound effect on women's participation in the workforce. We should recognise that it was not something arrived at with the total willingness of the Legislature, and it is why legislation is needed to progress matters in this country. It came about because we were forced into it by our membership of the EEC, as it was then known. The trouble is that attitudinal change is something at which it is very difficult to arrive and it must be driven by the leadership of people such as us who are legislating for change.

There is obviously a much better climate now for women within the workplace. However, we heard the figures quoted this morning; women still receive only 70 per cent of the remuneration of men. They are also locked into low-paid employment because a large and increasing percentage of new employment created is part-time and women tend to apply for those kind of jobs. However, they are still on the bottom rung of the remuneration ladder and that is something about which we must be aware.

The effect of legislation in driving change cannot be underestimated, but it cannot be overestimated in its achievement of the desired results. It is over 20 years since the equality legislation was enacted and we are still discussing changes which need to be made and developments which need to occur. A huge challenge is present in the provisions of this Bill which prohibit discrimination [295] on nine grounds. It must be ensured that when legislation is formulated, the means to implement it exist.

In this Bill we will depend greatly on the Employment Equality Agency, or the Equality Authority into which it will be developed. It has done much work for the development of women in the workplace. I was a member of the former Joint Oireachtas Committee on Women's Rights and an extensive report was carried out for it on the Employment Equality Agency, its development in terms of the new legislation and its needs in that regard. Access would be one example and is something to which Senator Henry referred. The agency is located in a building unsuitable for people with disabilities. Something that practical must be examined. However, there is the wider issue of the development of the agency. Those of us who are women should remember that it was spawned because of the development of women's rights in the workplace and we must be aware of that specific role and not allow it become lost in the wider remit of the Equality Authority.

There is the issue of the funding of that authority and its composition. I do not wish to deal with detailed matters on Second Stage, but one matter I raised and of which I remind the Minister of State, Deputy Mary Wallace, while she is present, is the importance of the National Women's Council being one of those bodies nominating a person to the board of the authority. I know it is something more appropriate to Committee Stage, but it is a little vague in the Bill and I wish to highlight it.

The issue of age is something which must be thought about again, especially with the ageing workforce mentioned by Senator Fitzgerald this morning. This is especially true for the role of women in the workplace because they in the main still care for children. Many women take career breaks or absent themselves from the workplace for a number of years. A hiatus then occurs and women re-enter at a certain level and find themselves having to catch up with their male counterparts. They also find they are older than most people at their level and this is more the case for them than for their male counterparts. This also has implications for the ageing workforce.

If one examines any major companies in this country — for example, the major banks — very few people over 50 are among their ranks and those in the main will be very senior. An age distribution does not exist in many such large companies. This has implications and there are issues which must be addressed. I welcome provisions on age barriers in the Bill. Again, it is something which will be driven by legislation rather than people in business realising it is something which is happening as we speak and something they would want to address rapidly.

I said I would concentrate on a number of areas as it is not possible to address all the complexities of the Bill. The climate was quite different during the initial discussions on this and the [296] equal status legislation. The distinct grounds set out here include sex, marital status, family status, sexual orientation, religion, age, disability and race. Who would have thought race would be such an issue? This issue requires more debate. I recall hearing Fr. Seán McGéil speaking about discrimination against the travelling community and racism in Irish society. This shocked many people who said it was not describing our society. Unfortunately over the past weeks and months we have had to examine our views more closely. Are we racist? There is an incipient part of our nature which must be addressed. We must confront these issues and legislation such as this helps us face up to them, something at which we are not always very good. As in the case of women's rights in the workplace, etc., unless we face up to our responsibilities as legislators we will find it very difficult to change attitudes in society. We must be conscious of bringing attitudes along with us. This does not concern a narrow set of issues but the way in which society develops. Irish society is quite different to what it was 20 years ago or ten or five years ago. These issues are relevant to the type of society we will have in the future. They are shaping our attitudes for the future and the debate must be comprehensive and deal with the issues in a profound manner.

This type of legislation lends itself to discussion which is even handed and respectful of other opinions. It is not appropriate that it should take place in an adversarial environment. When in Opposition I felt we were all on the same side in regard to this type of legislation and if we are not, then we should be. I look forward to the Opposition amendments because they must be debated. Issues arise, for example, in relation to sexual harassment. I welcome the fact that the Bill was considerably amended in relation to this provision, although there are one or two details which I would like to pursue further.

I do not believe there is much to amend in the Bill as so much work has been done on it in the past. I hope there will be a commitment to examining it in a fresh light and that, if it needs to be slightly polished, we agree to do so.

Mr. Coghlan: Information on Paul Coghlan  Zoom on Paul Coghlan  I welcome the Minister to the House for the Second Stage of this important legislation. The Bill, which promotes equality and ends discrimination, is well intentioned. It seeks to make provision in regard to two EU directives, namely, the Directive on the Approximation of the Laws of the Member States Relating to the Application of the Principle of Equal Pay for Men and Women and the Directive on the Implementation of the Principle of Equal Treatment for Men and Women as Regards Access to Employment, Vocational Training and Promotion, and Working Conditions. It also repeals the Anti-Discrimination (Pay) Act, 1974, and amends the Employment Equality Act, 1977. The Bill also provides for other related matters.

The Bill is the most significant contribution to prohibiting discrimination in employment since [297] the first anti-discrimination Act was passed 24 years ago. It is in line with commitments of successive Governments to introduce legislation to provide protection on a wide range of grounds and to outlaw discrimination. It also responds to the wide ranging change which has taken place in Irish society. Discrimination in employment often weighs disproportionately on those who are marginalised in society. The Bill focuses on positive action to integrate women and other disadvantaged workers into the labour market.

Like all legislation, it is difficult to get it right and we have seen this by virtue of the legislation's reference to the Supreme Court. As the Minister pointed out this morning, the three matters found repugnant to the Constitution have been put right. Notwithstanding this I suggest — and I wish to be adversarial in a kind and polite fashion — that the Bill has weak points and some flaws.

Section 6 provides that “for the purposes of this Act, discrimination shall be taken to occur where, on any of the [discriminatory] grounds. one person is treated less favourably than another is, has been or would be treated.”. While at face value the Bill purports to facilitate and legislate for equality, the number of exceptions included promote unequal treatment and highlight differences between employees. Thus the Bill provides exceptions to treatment of employees which would otherwise be categorised as discrimination under section 6 and which would be prohibited and unlawful under the grounds of general exception, gender, marital status, religion, disability, age, race and positive action.

I wish to give some examples which are liberally sprinkled throughout the Bill. Section 25 provides that Parts II and III of the Act do not apply to discrimination which results from an occupational qualification for the post in question. It then lists such posts. Section 36 provides that nothing in Parts II or III “shall make unlawful the application of any provision (whether in the nature of a requirement, practice or otherwise) such as is mentioned in subsection (2)” with respect to various offices including the Garda, officers or servants of local authorities, etc.

Section 17 provides that nothing in the Act renders unlawful any act done in compliance with section 56 of the Shops (Conditions of Employment) Act, 1938. Section 26 provides that nothing in the Act shall make it unlawful for an employer to arrange for or provide treatment which confers benefits on women in connection with pregnancy and maternity, including breast feeding or adoption. It also provides for an exception where the care of an elderly or incapacitated person in that person's home is involved and the sex of the employee constitutes a determining factor for employment.

Regarding marital status, section 34(1)(c) states that an employer may provide a benefit to an employee on or by reference to an event occasioning a change in the marital status of the employee. Section 17(2) provides that nothing in the Act renders unlawful any act done in compliance [298] with any provision of the Maternity Protection Act, 1994, or the Adoptive Leave Act, 1995. Section 16(1) states that the Act does not apply to persons who are not “fully competent and available to undertake, and fully capable of undertaking, the duties attaching to that position, having regard to the conditions under which those duties are, or may be required to be, performed.” Section 16 (3) states that it is permissible to treat persons over 65 years or under 18 years less favourably or more favourably than another person, whatever that person's age.

Section 17(5) provides that nothing in the Bill shall render unlawful any act done in compliance with paragraph 1 of Schedule 3 of the Redundancy Payments Act, 1967. Section 33 provides that in so far as persons over the age of 50 are concerned measures may be taken to facilitate the integration of such persons into employment either generally or in particular with the intention of reducing or eliminating the effects of discrimination against such persons.

The age ground or the disability ground exceptions are provided for under five sections. Section 27 provides for exceptions in relation to employment in the Garda Síochána. Section 31(5) provides that an employer or regulatory body shall not be regarded as discriminating against individuals in relation to indirect discrimination. Section 34(3) provides that nothing in Part IV or Part II shall make unlawful discrimination on the age ground or on the disability ground in circumstances where it is shown that there is clear actuarial or other evidence that significantly increased costs would result if the discrimination were not permitted in those circumstances.

On the ground of race, section 17(3)(i) provides that nothing in the Bill would render unlawful any act done in compliance with any provision made by or under section 40(3) of the Solicitors Act, 1954, or section 35 of the Finance Act, 1987. Section 24 permits positive action to promote equal opportunity for men and women by removing existing inequalities which affect women's opportunities in the areas of access to employment, vocational training, promotion and working conditions. Section 33 provides that nothing in Part IV or Part II shall prevent the taking of measures in order to facilitate the integration into employment either generally or in particular areas of a workplace of persons over the age of 50, persons with a disability and members of the travelling community. The State is also entitled to provide for discrimination in favour of disadvantaged groups under section 33(3). Section 34 provides exceptions in relation to employment by an employee's family.

With regard to flaws in the Bill, section 19 states:

It shall be a term of the contract under which A is employed that, subject to this Act, A shall at any time be entitled to the same rate of remuneration for the work which A is employed to do as B who, at that or any other [299] relevant time, is employed to do like work by the same or an associated employer.

This apparent right to equal pay is flawed because of the definition of associated employer. As a result the range of employers with whom comparison can be made is limited in respect of some employees and not in respect of others. An associated employer is defined by reference to the meaning of “associated” which is, under section 2(2):

For the purposes of this Act, two employers shall be taken to be associated if one is a body corporate of which the other (whether directly or indirectly) has control or if both are bodies corporate of which a third person (whether directly or indirectly) has control.

Such a definition is included to give an employee an opportunity of arguing that he is being unfairly discriminated against in terms of conditions of employment or otherwise. He can look not just to his own employer but also to the terms and conditions of employees of a comparative type in an associated company.

However, the Bill omits another possible range of association to the obvious disadvantage both of the employee and the employer who is in the associated category, namely, a business which is associated with an employer because the employer is controlled either by directors or by shareholders who run another but unincorporated business, as against those employees who can properly take advantage of the associated employer category of business. For the purposes of the Bill, those whose employers control another associated business which does not come within the definition are deprived of that right.

There is a wide ranging number of exceptions to the provisions of this Bill. In that sense, far from being a Bill to provide for equality, it highlights the differences between people, whether it is between the sexes or otherwise. It is well established in law that where parties are unequal, for the purposes of ensuring that they are treated equally, unequal measures not only may be but must be adopted to take into account the inequalities between unequal parties. The manner in which the Bill is drafted and the wide ranging number of exceptions provided for not only fail to treat unequal persons unequally with a view to eliminating inequality between persons but, by reason of the wide ranging exceptions and otherwise, the Bill has as its consequence the further institutionalisation of discrimination between persons. It treats equal people unequally and fails properly to treat unequal people unequally so as to eliminate discrimination against them.

Despite the best efforts of the Minister and his staff, there are still flaws in the legislation. It is often only after legislation has been in operation for a number of years that matters such as those I have mentioned come to light and one can see how legislation works in practice. Aside from the reservations I have expressed, I welcome the Bill.

[300]Ms Ormonde: Information on Ann Ormonde  Zoom on Ann Ormonde  I wish to share my time with Senator Fitzpatrick.

An Leas-Chathaoirleach:  Is that agreed? Agreed.

Ms Ormonde: Information on Ann Ormonde  Zoom on Ann Ormonde  The Minister's introduction of this legislation is a clear indication of his commitment and that of the Minister of State, Deputy Mary Wallace, to dealing with all aspects of discrimination on the basis of disability. I read many of the papers presented by the Minister of State and I am aware of the excellent work she is doing on behalf of the disabled. I commend her and wish her well in her work.

I welcome the Bill. It is a framework for the achievement of equality on a broad front. The last Seanad dealt with most of its provisions when the original Bill was introduced in 1996. However, a provision of that Bill which provided for accommodation was found by the Supreme Court to be repugnant to the Constitution. That judgment was based on property rights and begs the question whether even this Bill can be implemented. If employers will not allow their premises to be adapted to provide access to disabled people because of the cost involved, that in itself is a discrimination. It will be interesting to see how that problem will be overcome.

The Bill covers discrimination on the basis of gender, marital status, family status, sexual orientation, age, disability, race and membership of the travelling community. This indicates a new way of thinking about how to treat those who are disadvantaged and do not have equality of opportunity in terms of access to employment and in every walk of life. Women have made great progress since the implementation of the 1977 Act which outlawed discrimination against women in employment and remuneration.

In the 1960s a woman had to retire when she married. Many of the jobs open to women were at the lower rungs of the career ladder. Women were not considered to have the ability to assimilate information. They were, therefore, disadvantaged in any job. This reflects how much we have come into our own.

Education has opened up many doors to all of us. Women have come a long way as a result of the shift in patterns of work. Career opportunities in terms of job sharing and modern work practices have enabled women to come into their own in whatever career they wish to pursue. Contract work and flexitime enable greater flexibility and opportunities to take leave without losing status have increased greatly. Cre che facilities are becoming the norm in many places of employment, making it easier for people to bring their children to the workplace.

I worry about those who are disabled and, as a result, socially deprived. The unemployment rate in this category is very high. Young children with a learning disability cannot be assessed as there is a lack of psychologists and special resource teachers. They are not as privileged as those coming [301] from a more secure environment. That is discrimination. Hopefully, the Minister will examine this. It should be on the agenda of all Departments, especially the Departments of Health and Children, Education and Science and Social, Community and Family Affairs and not just the Department of Justice, Equality and Law Reform. There is a joint body linking up those Departments to examine hidden discrimination which is only discovered when a child of seven cannot be assessed because of huge waiting lists and lack of psychologists. They are not given a proper opportunity.

As regards age discrimination, ten years ago older people would find themselves left on the heap. That is changing and we are getting away from the traditional thinking that when you come to a certain age you are no longer able to work. Many of us know those with experience can do a great deal. The age concept does not exist in other countries and those with experience contribute a great deal. We should tap into those skills. There is retraining for the long-term unemployed at all ages. We have come a long way in relation to age discrimination. I congratulate the Minister on the areas of the Bill which deal with these matters.

I am concerned about information access. How many people understand what we are doing here? Are we sufficiently user friendly? Do people in the world of work understand equality of opportunity? Recently I approached a local mechanical employer to ask him to take a student on work experience. I did not indicate the student's gender and he said that of course he would do so. I told him I would send the girl down the following Monday. Immediately he said that would not be possible. He did not realise that I was testing the water as it was during the time when the Bill was going through last year. Employers did not know the implications of the legislation. There were no notices about it in the workplace. That example illustrates how much people are unaware of what is happening.

There should be access to information in all walks of life. If I have a student who needs to be assessed, the assessment should be carried out within a short time so we know where to take that student from there on. That is where we fall down. Those who are disadvantaged and socially marginalised are the most vulnerable.

As regards respite care, a family with a young disabled child who need a break find sometimes transport is inaccessible. This causes social marginalisation. They may be inhibited from seeking information which would help them. The privileged have the self esteem and the confidence to find a way to go about their business. Access to information is essential to make people feel they can achieve their full potential.

We have left behind the old structures of the world of work. There is new thinking on the whole concept of work and this Bill will help that new thinking. The Bill covers much and gives real access to equality, particularly for those who need [302] it most, the marginalised. The fact a Director of Equality Investigation is to be established will help to overcome many of the difficulties we might encounter.

Dr. Fitzpatrick: Information on Dermot Fitzpatrick  Zoom on Dermot Fitzpatrick  I thank Senator Ormonde for sharing her time and I welcome the Minister to the House.

I welcome this Bill. It has been tried and tested in the Supreme Court. It is like a well made suit, even the seams have been tugged at to test them. The Bill sets out to support access to employment for people of all ages, colours, creeds and genders and to prevent marginalisation of those who are in danger of marginalisation due to the disability or perceived disability they suffer from.

The Minister spoke about the medical profession and said women comprised 35 per cent of the staff but only 20 per cent of consultants whereas the number of women in the general workforce has doubled between 1991 and 1996. I am most familiar with my own profession of medicine. The percentage of women among medical students is rising and is now 60 per cent. This trend will probably continue. In Dublin, however, none of the three maternity hospitals has a female master. Under the mastership system a consultant doctor is appointed for a term of seven years and given total financial, clinical and administrative control of the hospital for that period. He is answerable only to a board and, ultimately, to the Department of Health. The system gives a great deal of power to the master, but it has worked well for 250 years. Our maternity hospitals, indeed, set the standard by which others are judged. However, we have never appointed a female master in any of these three hospitals which deal exclusively with women's health. One of the maternity hospitals will appoint a new master this year. There is no shortage of highly skilled women gynaecologists and obstetricians, yet we are inhibited in appointing a woman to one of these positions. I hope that this will have changed by the end of 1988 and that the Minster will keep an eye on this situation.

It is our business to take cognisance of changes in the world outside this House. This Bill addresses the changes which are taking place around us. One of my colleagues, rather colourfully, compared legislators to bus drivers with bus loads of recalcitrant passengers. The task is to reach the destination without upsetting them unduly.

Because of social and financial conditions, women occupy the lower levels of the workforce. The majority of primary school teachers are women, yet the majority of school principals are men. I find this amazing. Why are so few women appointed as school principals or as masters of maternity hospitals? Does a glass ceiling exist?

In our efforts to promote equality we have fractured the English language. We have chairpersons instead of chairmen. I find this word awkward. Our own language provides words which are gender neutral. Irish has many non-sexist [303] terms such as cathaoirleach. We should turn to it for language with which to write Bills and to describe various positions.

I welcome the provisions in the Bill which deal with ageism. I know from my medical practice that unskilled workers are not wanted by employers when they reach the age of 40 or 45. This has given rise to yellow-pack workers — young people half the age who work for half the wage. Employers have little respect for years of experience.

This Bill has been well tested and I welcome it.

Mr. Quinn: Information on Fergal Quinn  Zoom on Fergal Quinn  I welcome the Minister of State, Deputy Wallace, and I applaud the words of the Minister, Deputy O'Donoghue, here this morning. It would be difficult to criticise the aims of this Bill. No one can fail to encourage the elimination of discrimination of any kind and so I may seem to speak with the voice of caution. Let me establish my credentials in this matter. I proposed an amendment to the Unfair Dismissals Bill, 1993, in this House five years ago. I proposed that the list of grounds for unfair dismissal should include age. I was pleased that my amendment was accepted. I mention this as an indication of my support for the ending of discrimination. Like any Member who speaks in the House, I do so in an attempt to improve the Bill.

Here is my concern. The history of job creation in Europe compared to the United States has been dismal. We have been succesful in Ireland in recent years but we cannot be certain that this success will continue. Sometimes things are better not put into legislation. We should not assume that legislation is the only way to solve problems. Sometimes there are better ways. The United States have created huge numbers of jobs in the last few years while Europe has lost jobs. This is because the United States have made it easy to take on people.

On a plane to America last year I met an Irish-man who was on the board of a large American company. He described how easily American business takes on new people. They find it easy to experiment and be entrepreneurs. He cited the example of one board he was on where one of the employees had an idea and was given the go-ahead to take on 38 people to see if it would work. My Irish colleague said it would be disastrous if he failed. The employee was told he would be given a chance to succeed and if he did not he could let the 38 people go again. It is unthinkable that a company in Ireland would risk taking on 38 people in the hope a project would succeed. It is because of that entrepreneurship and risk-taking that America has created jobs and has the lowest rate of unemployment ever.

I fear that when we pass worthy legislation in both Houses we make it less easy for a business to take on new people. We make it more attractive for someone not to take a chance because there are so many new rules and regulations that [304] need to be examined by a lawyer. I am not saying there is any measure in this Bill that we should not implement. However, I urge the Minister to think seriously before strengthening a Bill such as this one for the most well-meaning reasons.

A couple of years ago, I met senior business people in America. I was thrilled with the response when one of them heard I was from Ireland. He said I came from the most marvellous country in the world and we had great pubs, conversation, writers, golf courses and salmon fishing. He then told the others not to open a business in Ireland. He said he was on the board of a number of companies and he made it a policy not to employ people in Ireland because the Irish legislation, attitude, State agencies and trade unions made it so difficult. I swore that was not correct. However, every time we take the most worthy step, we make it less attractive for someone to open a factory and take on new employees.

The other difference between the United States and Europe, and perhaps Ireland, is that most new jobs in the US are not in big industry. Most of them are in businesses employing one, two or three extra people. We must not lose sight of small businesses in Ireland trying to succeed in a competitive market. If those thousands of businesses could take on one extra person it would be a healthier way of solving our unemployment problem rather than coaxing marvellous companies such as Seagate and Digital to Ireland. Every time we pass employment legislation, we make it less attractive to businesses to employ people.

In my company two years ago we advertised internally for the position of chargehand. There were a number of male and female applicants for the job. One person was interviewed by the manager who tried to relax him by making conversation. He could have asked the interviewee where he went on his holidays but instead asked him was he anxious to get the job. The interviewee said he was and the manager asked him was he so anxious to get the job that he would be willing to shave off his beard. The interviewee said he would if it was necessary. A decision was reached and another male got the job. The interviewee who was asked about his beard decided he was asked an unfair question and took further action. My company was fined £750 for asking a question of a male which it could not have asked of a female.

Perhaps we did not train our manager well enough in interview techniques. My company has thousands of employees and can afford legal advice. However, what chance does an employer of one or two people have if he or she decides to interview someone for promotion and is in danger of making an error in the process or in how he or she advertises?

I advise caution and an understanding of the objectives. We should encourage the movement towards a fairer society free of discrimination. However, we should be careful of every step we take along the line when we make it less attractive [305] for an entrepreneur to consider expanding his or her business. That applies in other aspects of our legislation and I understand why. For example, a strong case is being made for small businesses. If we only support small businesses and say this legislation will apply to them only, we are in danger of telling them not to get bigger because if they do they will lose the benefits of taking on another person.

We should be careful with this legislation. We should listen to those employers who want to take on new people and do not have any intention of discriminating. Every time we introduce a Bill such as this, which contains over 70 pages, we should think of those people who will need legal advice before they take on someone else, promote someone, or advertise and interview for a position. This makes it less attractive for someone to create new enterprise. However, I welcome the Bill and I have no problems with it. On Committee Stage, I will argue against any strengthening of this Bill, except for sound reasons.

Mr. Chambers: Information on Frank Chambers  Zoom on Frank Chambers  With regard to the Minister's previous statement on disability equality, I welcome the Government's commitment to bring forward legislation which attempts to redress the situation. I listened carefully to Senator Quinn's contribution during which he sounded a note of caution.

The Minister made a number of the points in respect of the Bill. He stated that, since the introduction of the first Employment Equality Bill, it has taken 21 years to place the status of women in the workplace vis-a -vis job opportunities on a reasonably equal status to that of their male counterparts. This shows the great difficulty faced by disabled people in particular.

At a recent conference involving the Centre for Independent Living it emerged that 80 per cent of people with disabilities are unemployed. When one considers the discomfort and lack of function those people experience in a reasonably affluent society, one realises the difficulties they face and the lack of interest they can have in themselves. This major problem must be faced by the Government and the people. That will not be an easy task.

While I would not like to see the introduction of legislation to govern people's lives from the cradle to the grave, particularly in respect of what we should do in the interests of reasonableness, fairness and consideration towards others, legislation dealing with issues such as equal opportunity must be introduced to redress the imbalances created in a developing society. For that reason, I welcome the Bill.

In the context of the Employment Equality Bill, 1996, there is a strong belief among disabled people that, to an extent, the recent Supreme Court decision reiterated an element of discrimination against them. That difficulty must be overcome in the new legislation.

I welcome the progress made in respect of the provision in the Bill which indicates that State [306] supports for the workplace, adaptation and equipment will be additional to any cost borne by the employer. As I interpret it, this means the State will be obliged to bear a cost in respect of the introduction of equal opportunity. This reflects the Supreme Court's judgment.

In the context of the previous Employment Equality Bill, one of the considerations on disability equality was that State functions of support would be reconsidered to ensure that people with disabilities obtain reasonable and fair opportunities and are dealt with efficiently and effectively by the State institutions such as health boards and local authorities. I am familiar with a person with an autistic child who applied for a disabled person's grant for the purpose of regulating a facility for his child to provide the necessary support and facilities within the confines of his house. Local authorities should work in a more flexible way to accommodate people with autistic children and they should allow people to make improvements to their homes which are creative, effective and are not costly to the State. Adjustments should be made at local authority level and I intend to suggest this to the county council in my area.

The issue of the supports that are necessary for disabled people should be quickly addressed. There is a strong belief among disabled people, which they have great difficulty overcoming, that they will lose existing supports when they become unemployed. The State should consider ways to provide short-term support until these people find satisfactory employment to enable them to support themselves.

I recently spoke to an individual with a personality disorder. The young man in question is highly qualified and he sought a position in one of the financial institutions. He was disappointed when he did not get the job. During the interview he found it difficult to express his views and highlight his qualifications. However, he is very capable. When I spoke to the interviewer, he recommended that the person in question pursue a course to help him improve his situation. That is a simple answer. However, if the Employment Equality Agency is to operate within the confines of the Bill, a system should be put in place to monitor semi-State bodies, State agencies, financial corporations and other employers.

As a previous speaker stated, there is a need to educate those who provide employment such as personnel sections of companies and employment agencies. While it has taken 20 years to bring the status of women in the workplace to its current position, which is not yet satisfactory, it would be unacceptable if it took 20 years to resolve the problems relating to the status of disabled people. The technical support and information technology are already in place. As the Minister stated: “What is required is a law which works and which provides protection for those whom it is intended to protect.” As a developing country, Ireland must quickly redress the major imbalance that exists and ensure that citizens are treated [307] equally. That is an important challenge and we need to make progress in this area.

Financial supports for disabled people must be reviewed. People with psychiatric disorders incur considerable costs in respect of the way they live. In general, these individuals smoke a lot which places a great burden on them in terms of cost. I do not encourage such behaviour but they enjoy smoking because the cost of smoking impacts on their weekly allowances. For example, those on the disabled person's maintenance allowance receive only £67, which is a small amount to live on.

An important element of the Bill is that the principle of outlawing discrimination is established for minority groups, in particular. Discrimination against the travelling community has not been addressed in a formidable way. Housing has been addressed to a limited extent while job opportunities have not, and there is a strong discriminatory element against these people even though some reasons may seem justified. Equally, we have discriminated against the settled community in the sense that members of it have not received equal opportunity because of decisions made in the past.

It is important to note the increase in the number of married women in the workforce. It is a positive change reflecting the pattern of change in society, which through an educational process has moved with change. In addition, the structure of families has changed. However, if we do not succeed quickly in similar terms with regard to the disabled, it will reflect poorly on the positive changes taking place elsewhere.

I welcome the setting up the Employment Equality Agency and its work will be paramount to the success of the Bill. It is faced with a major task and will play a significant part in the evolution and development of discriminated sectors by providing equal opportunity. It is understood in terms of employment that if people over a certain age — for example, 45 years — become redundant their opportunities are limited. However, they have a great deal to offer society; but if technological change is harnessed alongside the provision of opportunities and investment, the wellbeing of many people could be improved, especially in regard to advances in education.

The Bill is substantial and fair and there is a challenge for employers to operate under it to redress the imbalance that exists. It will not provide a perfect society overnight but it could do a great deal to enhance the lives of those who have been marginalised if the proactive measures necessary are adopted by the Employment Equality Agency, especially in terms of job opportunities. However, we will have a better society as a result of this legislation.

Ms O'Meara: Information on Kathleen O'Meara  Zoom on Kathleen O'Meara  I welcome the Bill whole-heartedly and I am delighted to see it being reintroduced at an early stage in the lifetime of this Government. Fears were expressed when the [308] Supreme Court found the Bill unconstitutional that, given that judgment and the high level of controversy which surrounded the original Bill, it might be quietly buried. That would have never happened but I am glad to see the current Administration has taken that Bill almost completely on board. It has been enhanced in some ways, but diminished in others.

It is a comprehensive and wide ranging Bill with 90 sections and has grown, indeed, in its reincarnation. On its own it constitutes a valid argument for the retention of the Department of Equality and Law Reform, the passing of which I mourn. The Bill was brought to fruition by the previous Minister, Deputy Taylor. However, would the Department of Justice have produced such comprehensive legislation underpinned with a philosophy of equality ranging across gender, age, race which was realised by Deputy Taylor? It totally imbued this legislation, thus making it historic in its incarnation.

Unfortunately, a good deal has been lost in the new Bill. First, it sets up an Equality Authority by transposing a considerable section of the Equal Status Bill, but in doing so it has lost an important section concerning the power of the authority to ensure wrongs committed are righted. The authority has lost its teeth in the Bill and is made grossly deficient. The Labour Party will table amendments to meet this deficiency, especially if the Minister does not do so. However, unless they are taken on board, the power of the authority is effectively rendered useless. I hope that is not the Minister's intention and look forward to his reaction to my amendments.

Second, the Minister has committed an amazing error in the new draft legislation relating to one of the grounds under which the Supreme Court found the original Bill unconstitutional the use of a certificate by the equality director in regard to an offence committed under the Act. The Minister removed the offending section in the new Bill but what appears is a replica provision. I refer to section 77 (3)(b) which is concerned with the use of section 56 of the Industrial Relations Act, 1990. It alludes to a document purporting to be sealed with the seal of the court and is an identical provision to that which the Supreme Court found unconstitutional. In effect, the Minister has produced an unconstitutional Bill as well and I hope this will be remedied.

Many speakers referred to the advances made by women since the original equality legislation was introduced in the 1970s, the establishment of the Employment Equality Agency and the great work it has carried out. To some extent one would imagine that the only existing area of inequality relates to women. Obviously that is a major area which has occupied the time of legislators, commentators, women's groups, trades unions, etc., for a long number of years. Indeed, we have made many strides in that regard, for which in many cases we may thank the European Union. I wonder to what extent much of the equal pay and anti-discrimination legislation [309] would have been initiated by our legislators in the first instance if the push had not been made by the EU. Nonetheless, it is welcome and it has made a substantial difference.

The Minister seemed to suggest that there was a relationship between legislation promoting equality and the fact that we now have more women in the workforce, but of course that is not the case. The huge increase in the numbers of women in the workforce has to do with economic rather than legislative or statutory realities because none of the legislation has ever encouraged women to enter the workforce. We have tried, largely unsuccessfully, to prevent glass ceilings but we have never encouraged women into the workforce in any great numbers. Nevertheless, the increase in the number of women in the workforce is to be welcome despite the fact that it raises all sorts of other issues not relevant today. In that regard I hope we will be able to return subsequently to the question of parental leave and issues of parents and work, the effects on children, and family friendly work practices. This is another reason for the establishment of a Department of Equality, and I hope that comment does not fall on deaf ears.

The equality issue extends far beyond the issue of women and work, and this is clearly evident in nine distinct grounds on which the Bill outlaws discrimination. These are on grounds of sex, marital status, family status, sexual orientation, religion, age, disability, race and membership of the travelling community.

Some of my colleagues have referred to members of the travelling community. I hope this legislation will have some relevance to the emerging problem experienced by foreign workers and people from Eastern Europe. I am not referring to asylum seekers or refugees but to people who are legally entitled to come to this country to work. I hope this Bill will ensure that there is no discrimination against people whom we should welcome, and that victimisation and discrimination resulting from racism does not and is not allowed to grow. I hope this Bill will form part of what should be an all out attack on any incipient racism developing in this country. We have only recently experienced people of other cultures and races coming to live in this country. It is only when one travels abroad that one sees the great colour in European cities, such as London, that results when people of different cultures come to live in the community. Only this morning, for instance, I heard on the radio about an African shop in Dublin. This is to be welcomed because it adds to the great variety and choice, and increases diversity. This should open our minds to other cultures and experiences, but already we have seen that there is a negative side to that. There is an incipient racism, which has emerged in relation to foreigners and which has existed a long time, as we all know, in relation to the travelling community. This is why legislation such as this is necessary. We should take our place alongside our European partners in standing up against [310] discrimination, victimisation and racism, and standing for the extremely important principles of equality. I look forward to seeing the Equality Authority playing a role and flexing its muscles in that regard.

I referred already to the Supreme Court judgment which deemed the previous Bill to be unconstitutional and welcomed the fact that the Government has had the courage to reintroduce the Bill. However, I am disappointed with the way in which the Government treated the three areas on which the Bill was found to be unconstitutional in this new Bill. In particular, it seems extraordinary that people with a disability, to which other Senators referred, will suffer as a result of the legislation. It seems extraordinary that the Bill only places the minimum of responsibility on an employer in relation to employees with a disability.

The National Economic and Social Forum, which of course is a Government body, reports that the Government should underwrite the costs involved in providing reasonable accommodation for people with disabilities in the workplace, and this makes sense. If the Government believes in equality for people with a disability, it must put its money where its mouth is. The response in this Bill is very disappointing in that regard and must be very disappointing to those who have worked long and hard to achieve an equal share in economic life for people with disabilities.

The forum suggests, for instance, that the 1 per cent employment levy on PAYE workers, which is currently contributing to the Exchequer, would provide a fund which could go towards ensuring that people with a disability get their equal rights.

The chairwoman of the forum, Ms Maureen Gaffney, rightly stated that a balance must be achieved between the constitutional rights of property and social justice. Once again it seems the constitutional rights of property are taking first place.

The new Bill provides that employers must meet the cost of employing a person with a disability provided the costs are nominal, but what is nominal? The Bill does not define nominal. It should do so, and maybe it will be possible to do so on Committee Stage.

The Supreme Court has said that the State should bear the costs above this level. If there are 150,000 people with a disability in the State, the maximum estimate as outlined by the NESF, is it too much to ask that able-bodied taxpayers would contribute a small sum towards ensuring that people with a disability are allowed to exercise their right to express themselves equally with the rest of us? The provision in the Bill is a very disappointing response in that regard.

I have already referred to the certificates. There is a major problem in that regard and I hope it will be addressed.

The third area, which relates to vicarious liability, has only met with a minimalist response by the Government, where it put its head in the sand and said “Let us not be imaginative, creative or [311] show leadership in this regard. Get rid of the thing so we need not worry about it anymore”. That is a disappointing response.

The other response which I would have thought would have come from a Fianna Fáil led Government, seeing as they had made such a big deal of it in the past, is the notion of the hypothetical comparator. I always thought it was an extraordinary phrase, but it is one with which people in the industry are familiar. The Fianna Fáil election manifesto stated that they would amend the anti-discrimination pay legislation to allow the use of notional comparators. It stated that this would mean that workers in occupations which are overwhelmingly female will be able to base equal pay claims on the earnings of other groups of similarly qualified workers doing similar jobs. That is excellent and we all aspire to that objective.

Mr. Connor: Information on John Connor  Zoom on John Connor  It is not to be honoured.

Ms O'Meara: Information on Kathleen O'Meara  Zoom on Kathleen O'Meara  The Minister's predecessor, Mervyn Taylor, found that a notional comparator was unworkable in practice. Having looked at the files, it is obviously that the Minister has discovered this also. It is a bit rich to promise something in the run up to an election. Indeed, Deputy Woods also pushed out the boat in regard to the notional comparator when the original Bill was being debated on Second Stage in the Lower House. Unfortunately, that was yet another U — turn to add to a long list. Despite that, the Bill is welcome and contains some extremely valuable elements. I want to refer briefly to some of them as it is important to discuss them on Second Stage. For the first time there will be a definition of sexual harassment in Irish law. Not too long ago any woman who raised the subject in the workplace was not taken seriously. It is good to see that has changed.

I do not accept comments, which are made from time to time, to the effect that we have gone too far in the other direction. Any man or woman who feels they are being harassed or bullied — which is a form of sexual harassment in some cases — has a right to redress. It is stated in law that it is unacceptable practice. I do not accept remarks concerning political correctness in that regard either. Sexual harassment is a serious issue which the Bill defines and outlaws in the workplace. The Bill places an obligation on employers to ensure the workplace is free of sexual harassment. It obliges employers to prevent a person being treated differently because they reject sexual harassment. It is about time that happened.

The Bill allows an employer to put in place positive action measures to promote equal opportunities. This element of the Bill applies not only to this section but to others in which the Bill is proactive. It does not just set up structures and wait for events to happen to which the structures can respond; it is a proactive measure, particularly [312] in relation to the powers being given to the Equality Authority.

The Bill can bring about change. It is genuinely reforming legislation of the type any Minister would be proud and I look forward to seeing its effect in practice in the coming years. This positive action section is a major advance on the initial Employment Equality Act, 1977. It is another example of how we are moving forward in the area of equality by ensuring it becomes a reality.

Other speakers referred to the fact, which I welcome, that the Bill outlaws discrimination on grounds of age. That is extremely important, particularly for women and for the unemployed generally. Reference has been made on more than one occasion to the fact that those who suffer most from long-term unemployment are largely males aged over 45. There are sound economic and social reasons for that. If one looks at that age group one will probably find their level of skill and education in the past has not equipped them for a new era of work. I wonder, however, to what extent an age discrimination factor is built in.

I hope the new Equality Authority will be able to explore this matter and report to the Minister as well as taking action if necessary. The Equality Authority will replace the Employment Equality Agency, but there is barely any similarity between the bodies. The new authority will have a wide range of powers plus an ability to act in a proactive fashion. It will not simply replace the Employment Equality Agency but will upgrade and transform it as well as bringing it into a new era. It is charged with the statutory duty to work towards the elimination of discrimination and the promotion of equality of opportunity and employment. The Equality Authority is an excellent piece of work, which is all the more reason that, in giving it powers, we must ensure it has teeth.

I welcome the provisions giving the authority the power to undertake reviews and action plans as well as drawing up codes of practice. I have already referred to remedies and enforcement. If we can fix the deficiencies that are there we will be well on the way towards ensuring that the Equality Authority will have all the powers it needs and that the Office of the Director of Equality Investigations, which is to be established, will be effective. There would be nothing worse than to set up the Office of the Director of Equality Investigations only to discover within a short period that he or she is not able to carry out all the functions of the office or implement the spirit of the legislation.

I welcome the emphasis in the Bill on mediation where the director or an equality officer may refer a case for mediation. This will ensure that when the higher authority intervenes, or is forced to intervene, it only does so in the last instance. There will be cases where mediation will solve the problem rather than placing an onerous responsibility either on individuals or on [313] State agencies to activate a major procedure. This major procedure will be there, if necessary, to ensure that individual or group rights are respected.

Earlier, the Leader of the House said he plans to take all remaining Stages next Wednesday, but I told him I find that reprehensible. One needs time between Committee and Report Stages if significant amendments are to be tabled. Lack of time undervalues the role of the House and our role as legislators and that is not a suitable way in which to proceed. There was method in ordering an elapse of time between Committee and Report Stages. We did that earlier this week when we debated the Courts Services Bill and it worked well. It would be reprehensible to try to squash the remaining Stages of this major Bill, which currently contains 90 sections, into one day. I am arguing actively against such a move and I appeal to the Minister, in discussions with the Leader of the House, to ensure there will be some time, preferably a week, between Committee and Report Stages.

Mr. Farrell: Information on Willie Farrell  Zoom on Willie Farrell  I am the only person here who should be speaking loudly in favour of this Bill and I intend to do so. When I worked with the ESB I was discriminated against after losing my right hand in a shooting accident one Sunday morning. I did not get my job back. I used to drive a truck in my spare time. A colleague who was a county councillor in Sligo and who died a few years ago also had one hand. He owned the truck I used to drive. After my accident he drove me to the hospital to have my hand amputated. He did not have a licence to drive a truck so he was constantly in trouble with the law. That was why I drove it for him. I had to do a driving test and I asked the tester if I could get a licence to drive more than a light car. He told me that if I came in the following Saturday morning with a fully loaded ten tonne truck — that was the biggest truck 45 years ago — and I was fit to drive it, he would give me a licence. I did my test in a ten tonne truck loaded with gravel from a sandpit and I got a full licence. I then got a certificate of fitness from my doctor.

Some time later CIE was looking for bus drivers and I applied for the job. However, my application was not entertained. I have often met the man who interviewed me playing golf but I did not mention it to him. I wonder what he thinks about it now. The rules state that I was discriminated against. However, I am glad I was because I would either be a retired ESB worker or CIE bus driver instead of being a Senator and one of the chosen 60 in this magnificent club. Discrimination was a blessing in my case.

I listened carefully to what Senator Quinn said. If people with a disability have a certificate of fitness and competence they should be given an opportunity to do the job for which they have applied. I can drive a car or van as well as anyone else. However, I am unable to hang pictures because I cannot drive a nail into a wall. In the [314] self-service restaurant in this building there is a round tap on the drinking fountain and the tray underneath is not flat. I cannot balance the glass on the tray so I must ask someone to turn on the tap or hold the glass for me to fill it.

Disabled people can do many things well but there are some they cannot. There is no point in disabled people thinking they can compete on a level playing pitch. However, if a disabled person has the qualifications, competence and fitness they should be treated equally for each job for which they apply. There is no point offering someone in a wheelchair a job if they must use the stairs all the time.

We must also be fair to employers. We must be careful that people do not apply for jobs they do not want and then claim they were discriminated against in order to get compensation. Senator Quinn mentioned that he was fined £750 in such a case. It is easy to claim discrimination. It would not be easy for a shop owner to employ someone who was in trouble with the law for pilfering to collect cash from the cash registers even if they claimed they were rehabilitated. We must ask ourselves if we would like to employ such a person.

We must give employers an opportunity to make up their minds. One must be careful about the type of questions asked when inquiring if a person is fit for a job. There was a time when employers could depend on references. However, as we saw in a recent case, a professional who did not have a good record got a glowing reference because his employers wanted to get rid of him by ensuring he got the job for which he had applied.

I welcome the Bill because there is discrimination in this complex world. When it was first introduced in the Seanad last year, I said I had reservations about the cost of providing services for people with disabilities. I wanted to know how much a business would have to spend to provide proper facilities. That Bill, however, was found to be unconstitutional.

I have experience of employing people and of being discriminated against. We have not done enough to help disabled people to start their own business. I know many people who were rehabilitated and who started their own business. However, they were unable to compete in the rough business world. The hard winds blew and they were not able to market their produce. These people should be given special grants to set up sheltered businesses so they can compete and market their produce.

Although I welcome the Bill, I am glad it was not on the Statute Book 45 years ago. If it had been there in 1953, I would not be here today. Discrimination can be good or bad depending on how people look at it. I am glad we are removing all types of discrimination from the workplace.

Minister of State at the Department of Justice, Equality and Law Reform (Miss M. Wallace): Information on Mary Wallace  Zoom on Mary Wallace  I thank Senators for contributing to this debate. [315] The Minister, Deputy O'Donoghue, and I will carefully examine all the views expressed.

I am a little concerned that some Senators could lose sight of the ground breaking nature of the Bill. The vision of this and the previous Government has been to develop anti-discrimination legislation which is more ambitious than any to date in any EU member state. The Bill provides protection from discrimination on a wide range of grounds, as referred to by a number of Senators. In bringing forward the legislation, the Government has adopted a sophisticated rights based model and has tackled many complex legal, social and economic considerations.

Senator Connor showed a clear sensitivity to the issues the Bill is seeking to address and the size of the task in promoting the aim of equal opportunities. I thank the Senator for his clear analysis of the international context of the wage differential between men and women and the factors underlying it. We also noted his valuable perspective on the potential for a more proactive role in promoting equality by the trade union movement. The Senator mentioned that press reports earlier in the week associated parental leave with the mid-term review of the community support framework. That report was not accurate, if that is what it said. The Senator raised other questions about parental leave. The proposals for legislation are still being developed and details of the Bill which were reported in newspapers this week must be regarded as speculative.

I appreciate Senator Liam Fitzgerald's warm welcome for the Bill. He correctly pointed out that I, the Minister and the Department officials have put a considerable amount of work into this revised Bill since the Supreme Court judgment last year. The Senator alluded to the fluidity of the modern workforce. Part of the aim of this Bill is to address the reality of this new fluid and flexible workforce. For example, the inclusion of age as one of the grounds of the Bill is an acknowledgement of the increasing practice of certain people, particularly women, to return to work at a later stage in their lives. When this Bill is enacted, people will be supported in doing that.

Senator Norris drew attention to the complexity of the Bill and the fact that it is not as accessible as it might be. I accept this view in the main but ask him to accept that the style has been dictated by the necessarily complex and constitutionally difficult issues covered by the Bill. To ensure good access to the provisions of the Bill, my Department will issue explanatory booklets to bring the Bill to an appropriately wide audience. An explanatory leaflet entitled The Employment Equality Bill, 1997 has been available free of charge from the Department since last December.

The Senator also made reference to the Eileen Flynn case. He stated that the Bill would not protect Eileen Flynn from dismissal were her case to occur today. The case in question was taken [316] under the Unfair Dismissals Act, 1977. There is little doubt but had it been taken under the Employment Equality Act, 1977, the outcome would have been different. A case such as the Flynn case would fall for redress under Part III of this Bill, which replaces the 1977 Act. I hope the Senator will take note of the legalistic distinctions between the protections available under different legal instruments.

Senator Norris also raised the issue of legal aid. It is established practice that legal aid is not available for cases coming before labour rights adjudication machinery. This is because such machinery — the Employment Appeals Tribunal, Labour Court, equality officers and rights commissioners — have been established to facilitate the resolution of cases in an informal, non-legalistic forum. This approach has served us well to date and we see no compelling reason to change it. Cases arising under section 7 will be initiated before the Circuit Court. They are a different matter and there is no reason why they should not benefit from legal aid if the applicant otherwise fulfils legal aid eligibility requirements.

Senator Henry made the point that this Bill is needed. She pointed out the important role played by the Employment Equality Agency over 20 years in combating discrimination. I assure the Senator that it is our intention to ensure that the Equality Authority, which will subsume the functions of the agency, is resourced in such a way that it can adequately deal with its extensive new areas of responsibility. Senator Henry and others can be assured that the point made in relation to the suitability of premises for the proposed authority is well taken.

Senator Keogh mentioned the guide to the Bill provided by my Department. She emphasised the importance of making complex legislation accessible to the public. I agree with these sentiments. The Senator can be assured that when this important legislation is enacted there will be a comprehensive and readable guide to all provisions made available. Senators Keogh and Chambers also mentioned the Employment Equality Agency and the make up of the Equality Authority. They emphasised the importance of maintaining women's representation on the new authority. For the first time, section 40 provides for a gender balance on a State board. In addition, subsection 43(1)(c) allows for the retention on the board of representatives of women's organisations.

Senator Keogh struck a practical note when she pointed out that, despite the existence of equal pay and employment equality legislation, women still earn substantially less than men and are more likely to be employed in part-time jobs. My Department is undertaking a study with the Employment Equality Agency through the ESRI to obtain more information on the underlying reasons for this situation. I hope we can build on this information through the new proactive powers of the authority to begin to change this unfortunate fact in the labour market. [317] Senators Chambers, Farrell and Keogh made positive remarks on the progress on disability proposals. Senator Farrell gave an insight into disability and it is heartening to see that Members recognise the changes in the disability movement. In the report entitled A Strategy for Equality the Commission on the Status of People with Disabilities endorsed the Government's policy for a 3 per cent target for people with disabilities in the public service. In the case of the private sector, the commission proposed that a system should not be imposed immediately but that the sector should be given time to achieve a level of participation by the disabled on a voluntary basis. It recommended that if substantial progress is not achieved within three years, the Government should make obligatory the employment of people with disabilities by organisations outside the public sector. While the Civil Service already meets the 3 per cent employment target, progress towards meeting the quota in the wider public service is slower. Partnership 2000 contains a commitment that the 3 per cent target will be met in the broader public service within the period of the agreement. A survey to establish the precise position on employment levels is currently being conducted by my Department and was rightfully referred to by Senator Chambers.

An interdepartmental task force was established to prepare a plan of action on the rights of people with disabilities based on the commission report and this plan is due to be completed shortly. I have also established a monitoring committee to oversee the implementation of the commission's recommendations. The committee is representative of people with disabilities, their families, carers and service providers as well as the social partners and Departments.

Senators Keogh and Henry raised concerns about the new infrastructure for equality. I am committed to putting in place an effective functioning infrastructure both for the promotion of equality opportunities and for redress. An indication of this commitment is that we have secured funding of £2.1 million in the Estimates for the new arrangements. This provision covers the costs associated with the present level of activity in the Employment Equality Agency as well as once-off accommodation costs for the new institution. I am satisfied that none of the considerable powers of the agency under the 1977 Act has been set aside in the Bill, nor will they be in the equal status legislation to be published before the end of the year. The Bill provides additional powers, especially on discriminatory advertising, codes of practice, equality reviews and action plans. These provisions enhance the central role the authority will play in giving effect to this legislation.

Senator Ormonde raised concerns about the public perception of equality legislation and equal opportunities generally. She expressed particular concern about the need for the marginalised to be adequately informed about the provisions of the Bill. While agreeing with the [318] Senator's concerns, part of the role of the proposed Equality Authority will be to promote equal opportunities and to provide information to the public on the issues covered by the Bill. Dissemination of information will be a key part of the brief of the Equality Authority, which I hope will exercise a strong promotional role as part of its brief to advance the equality agenda.

Many Senators recognised that equality of opportunity and employment cannot be achieved solely through legislative provision. It will also require a greater recognition of the value and contribution of equal opportunity policy in employment. Senator Ormonde made a valid point about the garage owner and the employment of a mechanic. Senator Fitzpatrick made the point that no woman has ever been master of a maternity hospital — this is extraordinary. These are important issues which cannot be solved by legislation — we are talking about attitudes.

There are provisions in the Bill which, while not providing explicit protection against discrimination, will underscore other measures to promote equality in employment. Positive action, codes of practice, equality reviews and action plans have valuable potential in this regard. Some employers have already engaged in progressive efforts of this nature. Senator Quinn's company has wholeheartedly supported a project co-sponsored by the Employment Equality Agency and the European Commission, which also involves MANDATE, on drawing up a model of best practice to provide detailed guidelines for equality in the retail sector. A similar project in the local authority sector was undertaken by Dublin Corporation in co-operation with IMPACT. I commend Senator Quinn, MANDATE, Dublin Corporation and IMPACT for their commitment to this important work.

I thank Senator Coghlan for his broad ranging contribution. We will look at the points he raised, including the rationale for the 18 to 55 parameters on the age discrimination ground. The intention behind this particular provision is to ensure it does not have any unforeseen effect on the labour market by impacting on existing normal retirement trends. Sixty five years is still a common age for retirement on a compulsory basis in many types of employment. This aspect of the Bill is ground breaking and, in light of the changes which are taking place in the structure of the workforce, I believe it will be broadly welcomed.

Senator Quinn outlined some issues relating to the economic impact of labour law on employers. I understand his concerns about the introduction of any new employment rights and his view that it may discourage entrepreneurs from setting up businesses in this country. I think everyone will agree that in order to succeed in business it is necessary to employ people solely on the basis of merit and not on the basis of prejudices. The purpose of this Bill is to outlaw discrimination on the basis of such prejudices and I believe it will [319] contribute to, rather than detract from, good personnel and recruitment practices.

Senator O'Meara welcomed the Bill and I am grateful for her very thorough examination of it and for the interesting and constructive legal points she identified. I will review all points raised by her in the light of legal advice. It would seem that, if what she said is borne out by my legal advice, the Supreme Court itself has been inconsistent in its judgment finding one certification procedure in the Bill repugnant to the Constitution but appearing to tolerate an analogous provision in another part of the text. We will examine that issue.

Senator Farrell's remarks further illustrate that discrimination against people with disabilities was once taken for granted in our society. Attitudes have changed and there is now a greater awareness of disability and the need to protect people with disabilities under the law. I am grateful to Senator Farrell for his unique insight into this aspect of the Bill's provisions.

I am in receipt of a range of proposals for a change in the Bill's provisions relating to disability and reasonable accommodation. The provisions contained in these proposals have, in the main, been amended to take account of the Supreme Court judgment concerning their unconstitutionality. The criticisms of Senators Norris and Connor and the concerns of Senator Keogh also focus on these provisions. However, the complexity of the issue involved should not be underestimated. There will be an opportunity to consider the main changes sought in greater detail on Committee Stage and Senators can be assured that we will examine all points raised by them.

The Employment Equality Bill is a central element in the Government's programme to advance equality and is an essential step in the process towards the elimination of discrimination. It contains many new and desirable ground breaking initiatives, such as a requirement, for the first time, that the Defence Forces do not discriminate on the grounds of sex, new latitude for the development of positive action to help eliminate existing inequalities, codification of protections in regard to sexual harassment and new protections against other harassment in the workplace, the new Office of the Director of Equality Investigations and finally enhanced power for the Equality Authority to devise statute based codes of practice and to audit and review the advance of equal opportunities programmes at the level of the enterprise.

The Bill has also been shaped in response to a very wide consultation process and in response to the constitutionality difficulties which were identified by the Supreme Court. I know some people believe the Bill should have had wider scope and that other groups regard it as being over-generous in many ways but, in the end, it is a matter of judgment to balance the legal, social and economic issues in order to achieve viable legislation. I will consider any alternative proposals put forward [320] by Senators which are geared to refine that balance. I look forward to examining, in detail, the proposals for amendment to the Bill on Committee Stage and I thank Senators for their extensive contributions to today's debate and for the welcome extended to me and Minister O'Donoghue today.

Question put and agreed to.

Committee Stage ordered for next Wednesday, 18 February 1998.

Acting Chairman (Mr. R. Kiely): Information on Rory Kiely  Zoom on Rory Kiely  When is it proposed to sit again?

Mr. Chambers: Information on Frank Chambers  Zoom on Frank Chambers  At 10.30 tomorrow morning.


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