Equality Bill 2004: Second Stage.

Wednesday, 4 February 2004

Seanad Eireann Debate
Vol. 175 No. 7

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

Minister of State at the Department of Justice, Equality and Law Reform (Mr. O'Dea): Information on Willie O'Dea  Zoom on Willie O'Dea  The measures I bring before the Seanad today are intended to meet Ireland's obligations as a member of the European Union to implement Community initiatives provided for under Council Directives 2000/43/EC and 2000/78/EC, adopted under Article 13 of the EC Treaty, and Council Directive 2002/73/EC, adopted under Article 141 of the treaty. The directives, commonly known as the “equality directives,” provide for equal treatment on the grounds of gender, racial or ethnic origin, religion or belief, disability, age and sexual orientation.

The race directive, 2000/43/EC, provides a flexible general framework for combating discrimination on the grounds of racial or ethnic origin in both the employment and non-employment areas. The framework employment directive, 2000/78/EC, provides a general framework for the prohibition of discrimination associated with employment and occupation on the grounds of religion or belief, disability, age or sexual orientation. The equal treatment in employment directive, 2002/73/EC, updates and improves the 1975 equal pay directive and the 1976 equal treatment directive.

The overall effect of the three directives is to require member states to prohibit direct discrimination, indirect discrimination and harassment on grounds of gender, racial or ethnic origin, religion or belief, disability, age and sexual [438]orientation regarding employment, self-employment or occupational and vocational training. Sexual harassment and victimisation are also prohibited. The race directive also applies to discrimination in the access to and supply of goods and services.

As Members of the House will be aware, Ireland is already to the fore in its promotion and protection of the principles of equality and freedom from discrimination as a result of the ground-breaking legislation enacted in this regard in 1998, with the Employment Equality Act, and in 2000, with the Equal Status Act.

This legislation prohibits both direct and indirect discrimination in the areas of employment and access to goods and services on nine grounds, which include gender, marital or family status, sexual orientation, religion, age, disability, race or membership of the Traveller community. Thanks to the quality, effectiveness and far-sightedness of our existing equality legislation, many of the amendments required by the EU directives are relatively minor and chiefly of a technical nature. There are some new provisions in the directives which require transposition into our national law, for which it is both necessary and appropriate to make provision in primary legislation. I propose to provide for their transposition through amendments to the Employment Equality Act and the Equal Status Act, as provided for in the Bill. The forthcoming Social Welfare Bill 2004 will provide for the transposition of the directives with respect to matters relating to occupational pensions.

It is important to ensure that a coherent and consistent approach is maintained in our legislative and administrative infrastructure for equality. This will facilitate ease of access for persons who claim they have been discriminated against, particularly where more than one ground for discrimination is cited. For this reason, amendments arising from the three directives are being implemented at the same time in one Bill. In addition, with a view to preserving coherence across the nine grounds in our legislation, it is intended to implement requirements of the directives in a way which applies their provisions to each of the nine grounds and to both employment and service provision where this is feasible and appropriate.

An opportunity arises in this process to align more closely the provisions of the Employment Equality Act and the Equal Status Act. As already referred to, the general principle is to broaden the scope of any such provision, for example, to extend discrimination under the Employment Equality Act to include discrimination by association or imputation, as is the case under the Equal Status Act, and to extend protection from sexual harassment under the 1998 Act to encompass same-sex sexual harassment, as already provided for under the 2000 Act. It is also appropriate to take this opportunity to amend the Employment Equality [439]Act to incorporate the provisions of the gender directive, which reflect European Court of Justice case law in regard to discrimination on the grounds of pregnancy or maternity leave within the meaning of the Maternity Protection Act 1995.

A consolidated approach to the amendment process is also reflected in the decision to incorporate directly into the Employment Equality Act and Equal Status Act the provisions of SI 337 of 2001 implementing Council Directive 97/80/EC. The directive, which applies to gender discrimination only, provides for the transfer to a respondent of the evidential burden of proof where a complainant establishes a prima facie case of discrimination. Under the race and framework employment directives, this provision will extend to proceedings on the discriminatory grounds and in the circumstances covered by those directives. For the purposes of consistency and transparency of the legislation, I intend to amend both the Employment Equality Act and Equal Status Act in a way that applies the provision to all nine grounds, including the ground of gender.

As a result of the framework employment directive the obligation on employers under the Employment Equality Act to provide reasonable accommodation to meet the needs of people with disabilities is being broadened. As a result, employers will be required to take appropriate measures to make such accommodation available, except where it would impose a disproportionate burden. The broader focus of the new provision will contribute to increased access for people with disabilities to the workplace. The constitutional limitation which has confined the requirement in respect of reasonable accommodation under national law to a threshold of nominal cost will continue to apply in the case of the Equal Status Act as there is as yet no similar EU provision in the area of goods and services.

A significant extension to the scope of application of the Employment Equality Act is to be made in respect of the self-employed and partners in firms. As a result, persons who are or were employed under a contract personally to execute any work or labour, as well as partners and former partners in firms, will be protected from discrimination in the workplace. The Bill also provides for revision of some of the categories of exclusion which are allowed under the Employment Equality Act. As a result, there will no longer be blanket type exclusions in the case of employment in the Garda Síochána and Prison Service.

I also propose to deal with certain other exclusions, currently provided for under sections 26 and 37 of the Employment Equality Act and section 6 of the Equal Status Act, which apply on a broad basis to private households. The current exclusions in this regard applicable to employment and the provision of accommodation in small premises in which the owner also resides [440]are not being retained in the context of the race and framework employment directives and will be replaced with new provisions which relate specifically to employment involving the provision of personal services and the provision of accommodation in a person's home where the private or family life of those concerned is affected. This will balance the protections afforded under the Acts to one person's right to privacy and another person's right to equal treatment.

The opportunity is also being taken to introduce a number of technical, procedural and other minor amendments to the Employment Equality and Equal Status Acts, arising from experience gained in the operation of the Acts as well as consultations with relevant interests. These amendments include, among others, clarification of time limits for referral of cases, date of occurrence of discrimination, treatment of cases involving more than one discriminatory ground, enforcement of determinations, decisions and mediated settlements, award of expenses and rules in relation to parallel claims and awards of compensation or redress.

I am also pleased to take this opportunity to amend the Equal Status Act in two further important respects. The first of these will provide certainty in regard to the ability of a parent or representative of a person with an intellectual or psychological disability to act in place of the person concerned in seeking redress. The second will enable licensed drivers under the age of 18 to have recourse to the Equal Status Act in cases of unreasonable treatment in relation to motor insurance.

In preparing the legislation as proposed, I have consulted widely. I will now deal with the main provisions of the Bill, which is divided into three parts. Part 1 contains preliminary and general technical provisions regarding collective citations, construction and interpretation of the Bill. Part 2 deals with amendments to the Employment Equality Act 1998. Part 3 deals with amendments to the Equal Status Act 2000. Part 2 comprises sections 3 to 41 of the Bill, each of which provides for amendments to the Employment Equality Act, for convenience referred to below as the Act of 1998.

It is proposed to amend the definition of “contract of employment” for the purposes of the Act of 1998 to include contracts to personally execute work or services and to deem references under the Act to employees or employers to include the parties to such contracts. In addition, it is proposed to amend the definition of “employee” to include, where the context admits, members or former members of a regulatory body and to exclude persons employed in the provision of personal home services affecting the private or family life of those concerned.

The existing definitions of “discrimination” and “the Director” will be amended to include, in the former case, the issue of an instruction to discriminate and to replace, in the latter case, [441]“Equality Tribunal” for “Equality Investigations”. In addition, the scope of the definition of “proceedings” is being widened to include any proceedings, including subsequent proceedings, before a person, body or court dealing with a request or referral under the Act of 1998. For clarity and drafting purposes, it is proposed to define “personal services”, the term “persons” in sections 19, 22, 29 and 31, and “provision”.

Subparagraph (a) provides for the replacement of section 6(1) of the Act of 1998 to include less favourable treatment by imputation or association with another person. This parallels the provision under the Equal Status Act and is one of a number of amendments proposed for greater consistency between the Acts. Subparagraph (b) provides for a new section 6(2A) of the Act to provide that less favourable treatment on a ground related to pregnancy or maternity leave comes within discrimination on the gender ground. Subparagraph (c) provides for a new section 6(3) of the Act, in accordance with the framework employment directive, to substantively amend the existing exclusion from discrimination on the age ground in respect of persons less than 18 years or 65 years or over.

Section 5 is a technical amendment to section 10(2) of the Act of 1998, the effect of which is to simplify the text and refer to a characteristic mentioned in any of the discriminatory grounds rather than to a “relevant characteristic” which is no longer defined for the purposes of the Act. Section 6 is a further technical amendment to provide for the deletion of section 12(3) of the Act of 1998. Regarding section 7, in extending the scope of the Act of 1998 to the self-employed, it is proposed to include, in a new section 13A of the Act, a specific provision in respect of partners within partnerships, including general partners within limited partnerships.

Section 8 incorporates a new section 14A. Under the directives a common approach is taken to the treatment of harassment and sexual harassment on any of the discriminatory grounds. It is proposed to reflect this approach by inserting a single new provision on harassment and sexual harassment and removing the current separate provisions in section 23, in respect of gender related sexual harassment, and in section 32, in respect of non-gender related harassment.

Section 9 replaces the provision under section 16(3) of the Act of 1998 regarding the duty of employers and persons engaged in vocational training to accommodate the needs of people with disabilities to enable them to access and participate in employment or training as applicable. At present, the requirement on employers is limited to cases where this gives rise to no more than a nominal cost. This will extend it to cases where it does not impose a disproportionate burden on the employer.

Regarding section 10, under section 17(2) and (4) of the Act of 1998 compliance with specified statutory provisions is excluded from discriminatory action on the grounds of race and [442]age. Having regard to the framework employment directive, it is proposed to replace these provisions. Paragraph (a) amending section 17(2) gives effect to Article 3.2 of the framework employment directive excluding differences of treatment based on nationality with particular reference to the provisions and conditions relating to the entry into and residence of third country nationals and stateless persons in the member states and to any treatment arising from their legal status from the scope of the directive. The provision is limited in its application to actions taken in accordance with a statutory condition or provision governing access to employment or occupation and applicable to persons not lawfully resident in the State or who have not yet gained such permanent status. Paragraph (b) takes account of the difference of treatment on the grounds of age which are permitted in accordance with Article 6 of the framework employment directive.

Section 11 is a technical amendment to section 18 of the Act of 1998, arising from the amendment in section 4(b) of the Bill to section 6 of the Act. Section 12 provides for an amendment to section 19 which deals with entitlement to remuneration. Paragraph (a) provides for a technical amendment to section 19(2) of the Act of 1998 to delete the definition of “employed” for the purposes of the section. This is no longer required having regard to the amended definition of “employee” proposed in section 3 of the Act. Paragraph (b) amends section 19(4) of the Act of 1998 in regard to the definition of indirect discrimination on the gender ground in relation to equal remuneration.

Regarding section 13, it is proposed to amend section 22(1) of the Act of 1998 dealing with indirect discrimination on the gender ground other than in relation to remuneration in line with the amendment to section 19 of the Act outlined under section 12 of the Bill. Section 22(4) of the Act, which makes separate reference to the grounds of marital and family status, is no longer required as a result of this amendment and is being deleted. As in the case of section 12, Senators will also note that this provision is paralleled in the non-gender area in section 20 amending section 21 of the Act.

Section 15 involves an amendment bringing the provision for positive action measures under section 24(1) of the Act of 1998 more closely in line with the provision in this regard under Article 2.8 of the gender directive. Section 16 replaces the provision in section 25 of the Act of 1998, permitting discrimination on the gender ground where a person's gender is an occupational qualification with a more limited provision in respect of access to employment in line with Article 4 of the framework employment directive.

Section 17 provides that, in addition to the new provisions in section 25 of the Act of 1998 permitting difference of treatment based on gender having regard to occupational [443]requirements and the parallel provision on the other discriminatory grounds which will apply under the new provisions in section 37 of the Act, a new, single exclusion in respect of certain employments relating to private and family life is being provided for in place of those currently provided for under sections 26(2) and 37(5) of the Act. This is provided for within the definition of “employee” provided for in section 3 of the Bill.

Section 19 replaces the provisions in section 29(4) of the Act of 1998 as regards indirect discrimination in regard to remuneration other than on general grounds. The new subsection (4) applies section 19(4) of the Act, already dealt with under section 12 above, which deals with indirect discrimination on gender grounds as regards equal remuneration.

Section 20 replaces the provision in section 31(1) of the Act of 1998 as regards indirect discrimination on a ground other than gender and other than on remuneration grounds.

Section 22 brings the provisions for positive action measures under section 33 of the Act of 1998 more closely into line with the provision in this regard under Article 7.1 of the framework employment directive. Article 6.2 of this directive permits discrimination on the age ground in respect of occupational benefits schemes. It is proposed to amend section 34(3) of the Act of 1998 to reflect this principle and to delete the exclusions currently permitted on the grounds of age or disability.

Section 24 is intended to clarify that the exemption from discrimination on the disability ground in section 35(1) of the Act of 1998, in respect of the payment to an employee with a disability a particular rate of remuneration, applies only where the rate is determined on the grounds that the worker in question has a lesser output of work in a particular period when reasonably compared to that of an employee without the disability.

In parallel to the proposed amendment to section 25 of the Act of 1998 relating to differences of treatment on the gender ground, section 25 of this Bill amends the corresponding non-gender provision in section 37(2) to permit differences of treatment based on the characteristic related to a discriminatory ground where it constitutes a genuine and determining occupational requirement and the objective is legitimate and the requirement proportionate. Provision is also made in new subsections (3) and (4) for certain operational requirements applicable to the Garda Síochána and the prison and emergency services. Subsection (5) provides for a continuation of the exemption for the Defence Forces in respect of age and disability grounds. As referred to when outlining section 17 of the Bill, the exclusion under subsection 37(5) of the Act in respect of employment in private households is being replaced with a new single exclusion relating to private and family life.

[444]In section 26, paragraph (a) provides for a technical amendment to the definitions of “equality mediation officer” and “equality officer” in section 74(1) of the Act of 1998 arising from the related amendment in section 27 of the Bill to section 75 of the Act.

In section 27, paragraphs (a) to (c) make a number of necessary technical amendments to section 75 of the act of 1998 arising from the proposed renaming of the Office of the Director of Equality Investigations as the equality tribunal. Paragraph (d) makes necessary deletions in sections 75(3) and 75(4) of the Act to remove references to equality officers of the Labour Relations Commission and empowers the director to issue guidelines or guidance notes, appoint persons as equality mediation officers and delegate functions.

In section 28 the effect of the proposed amendment to section 76(2) of the Act of 1998 will be to include as material information which may be sought by an employee claiming discrimination information, other than confidential information, about the scale or resources of the employer's business.

Section 29 proposes a number of amendments to section 77 of the Act of 1998 to provide greater clarity and effectiveness to the operation of the redress procedures under the Act.

In section 30 it is proposed to insert a new provision in the Act of 1998 to allow the director or the Labour Court to dismiss claims which they consider to have been made in bad faith or to be frivolous, vexatious, misconceived or trivial.

Section 31 is a technical amendment to section 78(7) of the Act of 1998 to stipulate that an application for a resumption of a hearing shall be in writing and, where a notice has been issued by an equality mediation officer, to remove the requirement that it be accompanied by a copy of a notice, where issued by an equality mediation officer.

Section 32 refers to the amendment proposed in paragraph (a) of section 32 of the Bill. It will introduce a minor technical change to the operation of section 79 of the Act of 1998, which will facilitate a more streamlined approach to the investigation and determination of individual sets of circumstance where more than one discriminatory ground is involved.

Section 33 adds a number of new provisions to section 82 of the Act of 1998 including a new provision at section 82(6) of the Act which also deals with the issue addressed in section 32 above where one set of circumstances involves claims of discrimination on more than one discriminatory ground.

Section 34, inserting a new provision as section 85A of the Act of 1998, takes account of Article 8 of the Race Directive and Article 10 of the framework employment directive, the effect of which is to place the burden of proof on the respondent where a prima facie case of discrimination has been established by the [445]complainant. It is proposed that the provision will be applied to all of the discriminatory grounds.

Section 35 will provide that the respondent in a mediated settlement may apply for an order to enforce the terms of a settlement and that, where such an application is made by the Equality Authority, the court may award costs to the authority.

Section 36 is a technical amendment to section 98(1)(b) in the Act of 1998 to align the reference therein to section 74(2) of the Act as a result of the amendment to that section provided for in section 26.

Section 37 inserts a new section 99A in the Act of 1998 to empower the Labour Court or director to order a person obstructing or impeding an investigation or appeal to pay travelling and other expenses reasonably incurred by persons in connection with the investigation or appeal, excluding expenses in respect of representation.

Section 38 is intended to remove the present impediment to provision of redress by the Equality Tribunal in unfair dismissal cases initiated in the Labour Court. As a result of the amendment proposed to section 101(5) of the Act of 1998, the Labour Court may, in appropriate cases, direct that an alternative avenue of redress may be pursued.

In section 39 it is proposed to insert a new section 101A in the Act of 1998 to ensure that where a person who has been dismissed or constructively dismissed seeks redress for an act of discrimination or victimisation from the director and the Labour Court, redress may not be awarded by both.

Section 40 is a technical amendment which will add cases referred to the director under the Anti-Discrimination (Pay) Act 1974 or the Employment Equality Act 1977 to the list of references which may, after one year of referral, be struck out by the director where they are no longer being pursued by the complainants.

Section 41 is a technical amendment to section 105, paragraph (a) to replace the reference to the Director of Equality Investigations with a reference to the director of the equality tribunal, as proposed under section 27.

Part 3 of the Bill relates to amendments to the Equal Status Act 2000. It comprises sections 42 to 58 of the Bill. Section 42 widens the scope of the definition of “proceedings” to include any proceedings, including subsequent proceedings, before a person, body or court dealing with a request or referral under the Act of 2000. It also provides for the definition of a new term, “provision”, meaning a term in a contract or a requirement, criterion, practice, regime, policy or condition affecting a person. It helps to clarify the relevant date to be applied as regards a claim of prohibited conduct.

Section 43 amends section 3(1) of the Act of 2000 by inserting a new definition of indirect discrimination to reflect the more advanced definition in the race directive. A new subsection provides that statistics are admissible for the [446]purpose of determining whether indirect discrimination has occurred. This is being applied in accordance with recital 15 to the race directive, which provides, in accordance with the rules of national law or practice, that such rules may provide in particular for indirect discrimination to be established by any means, including statistical evidence.

Section 44 provides for a narrow exemption excluding the provision of accommodation by a person in a part other than a separate and self-contained part of the person's home, where the provision of the accommodation affects the person's private life or that of any other person residing in the home.

Section 45 amends section 7 to provide that the Minister for Education and Science does not discriminate where in the exercise of his or her powers he or she prescribes requirements for the making of grants for the purpose of assisting persons to attend or continue to attend an educational establishment, providing higher or further education, which confines the making of such grants to persons who are nationals of member states of the European Union and persons who are not.

Section 46 redefines harassment as any form of unwanted conduct related to any of the discriminatory grounds, and defines sexual harassment as any form of unwanted verbal, non-verbal or physical conduct of a sexual nature. The section also provides that a person's rejection of, or submission to, sexual or other harassment, may not be used by any other person as a basis for a decision affecting that person. These changes are to apply the newer definitions set out in the relevant directive.

Section 47 provides for an exclusion from the provision of the Act of 2000 as regards persons who are not nationals and their entry to and residence in the State for statutory and non-statutory schemes, this being permitted under Article 3 of the race directive. The Government is of the view that as far as possible, discrimination on the grounds of nationality should not be permitted. It is proposed, therefore, that section 14 be amended to provide that, save in issues of asylum and immigration and difference of treatment in the provision of public services to asylum seekers and those not lawfully resident in the State, the Equal Status Act 2000 ought to apply to differences of treatment based on nationality.

Section 48 extends the definition of complainant to allow a parent or guardian of a complainant with an intellectual or psychological disability to act in place of the person concerned. Section 49 proposes a number of amendments to section 21 of the Act of 2000 to provide greater clarity and effectiveness to the operation of the redress procedures under that Act. Paragraph (a) provides for a technical amendment to section (2)(a)(ii) by inserting “to seek redress under this Act” for “to seek redress by referring the case to the Director.” Paragraphs (b) to (f) provide for [447]amendments to revise some provisions and the creation of new provisions to facilitate late claims to be accepted where there is reasonable cause or where there is misrepresentation by a respondent and to clarify the relevant date to be applied for a claim of prohibited conduct.

Section 50 inserts a new provision, as section 21A of the Act of 2000, to provide clarification that the date on which a claim or appeal is lodged is the date it is received by the director or Circuit Court. Section 51 provides for an amendment that allows for a method of appeal against a decision of the director to dismiss a claim because it has been made in bad faith or is frivolous, vexatious or misconceived or relates to a trivial matter.

Section 52 is a technical amendment to section 24(6) of the Act of 2000 to stipulate that an application for a resumption of a hearing shall be in writing and, where a notice has been issued by an equality mediation officer, to remove the requirement that the resumption request be accompanied by a copy of the notice. The amendment proposed in section 53(a) will introduce a technical change to the operation of section 25 of the Act of 2000 to keep in line with amendments under the Employment Equality Act 1998 on investigation and determination of individual sets of circumstances where more than one discriminatory ground is involved. Similarly, where a set of circumstances gives rise to more than one claim of discrimination across more than one of the grounds, they shall be investigated as one case, and where one or more claims of prohibited conduct include a claim on the ground of victimisation, they may be investigated as a single case. It will continue to be the case that a decision shall be made in respect of each of the claims. A minor textual amendment is also proposed under paragraph (b).

Section 54 proposes to insert a new section 25A in the Act of 2000 to provide for representation for any party to any proceedings under section 24 or 25 of the Act to be represented by an individual or body authorised by the party to represent him or her in the proceedings. Section 55 includes a minor technical amendment proposed under paragraph (a). Paragraph (b) adds a number of new provisions to section 27 of the Act of 2000 including a new provision in section 27(3), which also deals with the issue addressed in section 53 above, where one set of circumstances involves claims of discrimination on more than one discriminatory ground. In addition to investigating such claims as a single case, compensation will be awarded on the basis of a single case. It is also considered appropriate to exclude the Equality Authority, as a statutorily funded agency, from awards of compensation.

Section 56 will provide, in section 31 of the Act of 2000, that the respondent in a mediated settlement may apply for an order to enforce the terms of a settlement and that, where such an application is made by the Equality Authority, [448]the court may award costs to the authority. Section 57 inserts a new section 37A in the Act of 2000 to empower the director to order a person obstructing or impeding an investigation or appeal, to pay travelling and other expenses reasonably incurred by persons in connection with the investigation or appeal excluding expenses in respect of representation. Section 58, which inserts a new section 38A in the Act of 2000, takes account of Article 8 of the race directive, the effect of which is to place the burden of proof on the respondent where a prima facie case of discrimination has been established by the complainant. It is proposed that the provision will be applied to all discriminatory grounds.

While it is generally accepted that Ireland's existing equality legislation and institutional framework brings us into substantial compliance with our obligations under the directives, I am not complacent in regard to the need to be fully compliant with these obligations without undue delay. The due dates for implementation of the directives are 19 July 2003 for the race directive, 2 December 2003 for the framework employment directive and 5 October 2005 for the gender equal treatment in employment directive.

It would have been possible to discharge our duty to transpose the directives by means of secondary legislation under the European Communities Act 1972. However, I believe that such a narrow approach would have resulted in serious anomalies within the corpus of the equality legislation. As I have already stated, the directives are being applied more widely than is strictly required under their respective terms and this requires the rather complex legislation we are discussing here today. Having regard to what I believe is an equally essential obligation to implement the requirements effectively and with due regard to necessary consultation and legal advice, I am satisfied that there has not been undue delay in progressing these issues.

I look forward to Senators' contributions on this important legislation and I commend the Bill to the House.

Ms Terry: Information on Sheila Terry  Zoom on Sheila Terry  I welcome the Minister of State and his officials to the House. We are certainly seeing a great deal of him here.

Mr. O'Dea: Information on Willie O'Dea  Zoom on Willie O'Dea  I might become a Member of this House.

Ms Terry: Information on Sheila Terry  Zoom on Sheila Terry  I welcome the Bill which makes a series of textual amendments to the Employment Equality Act 1998 and the Equal Status Act 2000 to allow for the implementation of a number of EU directives. It is a simple Bill which must be welcomed although it could have gone further and we should have availed of the opportunity to do so.

I thank the officials who, from a drafting point of view, are to be congratulated for avoiding the use of non-textual amendments. I hope we can [449]now expect the Department to produce statute law restatements of our equality legislation. This legislation is being introduced under pressure from the EU. While we should thank the EU in that regard, the Government is becoming more reactive. It would be much better if it was a proactive Government which introduced necessary legislation. Why must we wait until we are rapped on the knuckles by the EU before we introduce this type of legislation? I am glad the EU is acting as a watchdog for Ireland.

The Bill addresses many aspects of citizens' equality. However, it does nothing to reinstate the Citizen Traveller, and anti-racism awareness programmes terminated by the Minister for Justice, Equality and Law Reform when he took office. I would like the Minister of State to respond to that point. The Bill also fails to address the equality of the Irish language. When the Leader of Fine Gael, Deputy Kenny, questioned the Taoiseach on this matter, the Taoiseach was far from convincing about his intent in this regard.

I am not satisfied that the Government is acting at this opportune time to give the Irish language the status it deserves and is entitled to in the European Union. The silence of the Minister for Community, Rural and Gaeltacht Affairs, Deputy Ó Cuív, on this issue is in sharp contrast to that of the 20 other European Governments whose languages will have official recognition in the EU. Ireland has an ideal opportunity, during its Presidency of the EU, to ensure the Irish language is recognised. We should not lose the opportunity with which we are now presented. Our MEPs, when they speak in the European Parliament, cannot use the Irish language. We should not accept that and we now have an opportunity to address that matter.

This legislation represents another lost opportunity to encourage employers to introduce family friendly workplace practices. The Minister of State was in this House for the debate on the Maternity Protection Bill. While small advances have been made, they do not go far enough. A great deal more could be done regarding family-friendly work practices and politicians should be to fore in promoting such practices. Members have called for them often enough. We encourage women who have been out of the workplace for many years to return but the structures are not provided to enable them to do so effectively. The Government is not giving a lead in providing crèches, which is one of the most basic requirements. Ireland is falling way behind in this regard.

I have concerns about section 9, which deals with the rights of persons with disabilities to have access to employment. Words such as “burden”, “disruption” and “detriment” are used in the context of determining whether a person with a disability should be facilitated. The Government's approach to disability is more akin to an accountant's cost-benefit analysis. This is reprehensible, particularly at a time when the [450]Government has published one disability Bill but has persistently delayed publication of another.

An opportunity has been missed in the legislation to prevent discrimination relating to parental, paternity and adoptive leave. Discrimination in this area affects everybody and the Bill should have addressed this. I am also concerned about section 24 under which employers are openly permitted to give a different rate of pay to a disabled person. This is a regressive step and marks a departure from the EU-wide principle of equal pay for equal work, regardless of one's ability. I am absolutely shocked that the Government is taking this route and I ask the Minister of State to clarify this. The Minister may be well intentioned in proposing the section, which lends statutory legitimacy to discrimination and represents an avenue for the exploitation of vulnerable people who, out of fear of losing their jobs, will be reluctant to complain. The section, at the very least, should state a disabled person cannot be paid a wage lower than the minimum wage.

Other issues, which should have been addressed in the legislation, are being ignored. For example, a number of Senators over the past year have raised the issue of discrimination against secretaries in the Oireachtas regarding their pay. A number of secretaries are being paid at a lower rate but this has nothing to do with grading and so on. Secretaries who took up their positions one month after other colleagues are paid a different rate. If people are to be encouraged to work, there should be equality in their workplaces. Those who start work at the same time doing the same job should be paid the same rate. I ask the Minister of State to address this issue. It is an opportune time to raise it because it results from the implementation of the Equal Status Act 2000. The Act removed several points on the age scale and the Department of Finance used this to create the disparity. This could and should be rectified easily. The Minister of State should do what he can to address this issue.

Young people applying for car insurance are unfairly treated and politicians should be proactive in addressing this. The issue has been debated for many years but nothing has been done to reduce insurance premia for young people, who are discriminated against. Our aim is to outlaw discrimination wherever we can. Such discrimination needs to be addressed as well as discrimination against the elderly. There has been much debate in this area over the past few weeks. The elderly and people living in poverty are being discriminated against. Legally, people should not be discriminated against on the basis of their sexual orientation but we know that is not the case. We must stand up against that to ensure there is not discrimination.

I refer to comments made by two senior Deputies in the past week regarding women participating in the Council of Europe. It is unacceptable for any Deputy to speak of women [451]in the way they did. Ireland has not come far in terms of promoting equality if Deputies are saying ladies may not be able to look after themselves when they travel abroad. Such comments are not acceptable and those Deputies should apologise. While I welcome the Bill, I will address a number of its provisions on Committee Stage.

Mr. Kett: Information on Tony Kett  Zoom on Tony Kett  I welcome the legislation, which transposes EU directives into domestic law. I welcome all legislation which seeks to assist or enhance the lives of people who feel marginalised or feel they are on the periphery of society. We have come a long way over the past ten years in terms of legislation and people's attitudes to equality. The Government parties were at the helm when most of the legislation in this area passed through the House.

The introduction of the Employment Equality Act 1998, part of which will be amended under this legislation, outlawed discrimination in the workplace. The nub of the Act was to outlaw discrimination regarding employment and conditions of employment and it introduced equal pay for work of equal value among others. The Equal Status Act 2000 affords protection to people outside the workplace on the same nine grounds provided for under the Employment Equality Act 1998. Both Acts complement the Unfair Dismissals Act, which provides redress to people who feel they are getting a raw deal in their employment, particularly women who are going on maternity leave. As Senator Terry said, they were targeted by unscrupulous employers.

In addition, the Human Rights Commission Act 2000 was introduced. It benefits all sectors of society and it established the independent Human Rights Commission, which was responsible for protecting, cultivating and developing human rights in this State. My interest in this area is confined to disability. Back in the mid-1990s the Commission on the Status of People with Disabilities was set up and its remit was to meet people who had disabilities, ascertain how they were being done down and make proposals in order that such people could move forward. That commission produced a document, A Strategy for Equality, which was a fine piece of work and still holds good today. When reading some of the submissions made at the time, I was amazed by the sheer sense of frustration felt by people with disabilities. One would have thought that frustration would have related to their personal experience of pain and discomfort, their impaired function, the incurable nature of their disabling condition or the vexed question of “Why me?”. However, that was not the case. They were most frustrated by the oppressive social barriers which prevented them from participating in life in as normal a way as possible. The other issue that emerged was that these people felt that they were being pushed to the margins of society. At the time, they believed that [452]they were not being given an opportunity to fully participate in society. Full participation would have allowed them to realise their potential.

In practical terms, the most serious problems at that time related to access and transportation. The built environment then was totally inaccessible. However, by virtue of legislation introduced in the interim there have been tremendous improvements in this regard. For example, anyone planning a building, domestic or otherwise, must adhere to the regulations under Part 10 of the Planning Act. These regulations suggest that even houses must be accessible because a person with a disability might be in the market for a new home in the future. All domestic dwellings must now be accessible for people with disabilities.

Any disabled person will attest to the fact that if one cannot access a building, all the other things to which one might aspire, such as accessing employment, education or leisure activities, are adversely affected. I have no doubt there are still individuals who, in terms of the planning regime, would try to cut corners in order to make savings. That is why the legislation has been put in place. We must ensure people comply with that legislation and do not get away with such behaviour.

I was interested to discover how those involved in the area of transport were affected by the new onus placed on them. I contacted the Department of Transport in respect of this matter and congratulated it and others on the way they have coped with the introduction of various items of legislation in this area. Since 2000 all major refurbishment programmes at bus and rail stations, together with the construction of all new stations and the purchase of trains and buses by State-owned public transport operators, take account of the needs of people with disabilities. Bus Éireann services Galway, Limerick, Cork and Waterford with low-floored buses which assist people with disabilities. Dublin Bus has approximately 450 such buses, which constitute 41% of its entire fleet. These buses operate on 37% of the company's routes. That is a good achievement on the part of an organisation which operates the largest transportation system in the city and which had much to do in terms of infrastructural considerations.

DART and rail services are also accessible. Trains on the Belfast to Dublin route are totally accessible and it is hoped to have basic accessibility on all inter-city trains by 2006. Money is also being invested in terms of educating front-line staff, which is commendable. None of this would have come about if the legislation compelling change had not been put in place. I would like to think differently but if the legislation was not in place such things would not happen. We must ensure that those charged with the responsibility of ensuring that people conform to the legislation do their work in that regard.

[453]Senator Terry referred to insurance. It is impossible for people under the age of 25 to obtain insurance in this city. That is a matter at which we must look from an equality perspective. However, people who are disabled face even further obstacles in attempting to obtain insurance. I read recently about a 77 year old who was refused insurance on no grounds other than his age. That is immediate evidence of one of the nine conditions not being adhered to. There was also an outrageous judgment in recent weeks relating to a man suffering with diabetes who lost his licence because of his illness. I hope that gentleman receives whatever assistance he needs to fight his case. That was a ludicrous judgment and it should not stand. That is why the Equality Authority and the Office of the Director of Equality Investigations are vital. Those independent bodies have a role to play and I hope they will attend to issues such as those I have outlined.

Reasonable accommodation is also an important element in the equality legislation. The Equal Status Act requires that providers of goods and services accommodate the needs of persons with disabilities by making reasonable changes in what they do and how they do it where, without these changes, it would not be possible for those people to obtain the goods or services on offer. The Employment Equality Act requires employers to do all that is reasonable to ensure that people in their employ have all the necessary means to perform their duties in a capable manner. As the Minister of State indicated in a different context, both requirements are subject to a nominal cost exemption. It is reasonable to say that the changes required in this regard are generally of low cost in any event.

The failure of employers and service providers to make this reasonable accommodation has been one of the main features of most case work on disability grounds to date. Discrimination against people with disabilities has emerged as a significant issue under both Acts. In 2002, 19% of case files under the Employment Equality Act and 11% under the Equal Status Act related to disability issues in that regard.

The Minister of State alluded to section 9 of the Bill which amends section 16 of the Employment Act. Section 9 places a greater onus on employers where a person with a disability is involved in either a recruitment or promotional issue unless this gives rise to a cost which is not a nominal cost. I welcome that provision. In 1977, the then Government made provision for a 3% target in terms of employment within the public sector of those with disabilities. I do not believe this target has been reached. The Departments of Finance and Justice, Equality and Law Reform recently commissioned a study on career progression for people with disabilities within the public sector. If the results of this show that we have not reached the 3% target, we should set about doing so at the earliest opportunity. I contacted Dublin City Council about this matter [454]yesterday and was informed that 4% of those it employs are people with disabilities. I welcome that. An onus should also be placed on people who provide services, contractors applying for State business or voluntary organisations which receive funding to meet the requirements as set out.

I wish the Bill safe passage through the House. I wish the Minister of State well in respect of the other legislation, the Disability Bill, which is occupying his attention at present. I have had discussions with people in the sector and am aware they have complete confidence in his ability and his commitment. I have no doubt the Disability Bill will come before us in due time and not before its contents have been fully agreed. I wish the Minister well with both Bills.

Dr. Henry: Information on Mary E.F. Henry  Zoom on Mary E.F. Henry  I welcome the Minister of State and the Bill. As Senator Terry asked, where would we be but for EU directives? At least we do not seem to be seeking derogations to the same extent as in the past. As a veteran of the derogation that was sought from the EU directive on equal pay for men and women, I can vouch for the progress that has been made.

  4 o'clock

Unfortunately, there is still a disappointing attitude in this country towards equality legislation. There are still people who are reckoned to be more equal than others and it is sad that we must introduce so much legislation at the last minute to ensure changes are enforced. After the Good Friday Agreement, the Irish and British Governments established an institution in Queen's University Belfast, the Centre for Advancement of Women in Politics in the School of Politics and International Studies. After the discovery last week that Ireland and Malta are the only countries out of 45 which did not amend their representation to the Council of Europe to include at least one woman as required, one wonders if the two governments should not establish a reciprocal centre in the Republic. The centre produces good booklets which I regularly receive. If anybody wishes, they are welcome to read them. I have a particular interest in a recent one entitled, “How can women MPs make a difference? Reconsidering group representation and the responsible party model”, written by Helena Catt.

When the Council of Europe suggested that the composition of the national representation there should be changed to include at least one woman, it did not do so for statistical reasons or because it would be nice to see a pink or red suit among the grey. It did so for the reasons that people elect women to parliament and other bodies, so they can represent the half of the electorate which is poorly represented in these Houses. It is not that men cannot represent women's issues or that women cannot represent men's issues. However, one has to reckon with the fact that one may be in a better position to conduct the representation in the place where the decisions [455]are being made. For a start, one will be bringing forward original rather than secondhand information.

Every representative is contacted by interest groups and stakeholders and everybody knows that, especially within this House, it is better to have this type of representation because it leads to better decision making. However, the House is poorly representative from a socio-economic point of view. Few Members of either House are from the lower socio-economic groups. When people have managed to become Members of the Houses of the Oireachtas, the least we can do is try to ensure, when other bodies request that there be some type of gender equality in the country's representation, that we try to fulfil that request. They are not making such requests for their entertainment.

Women have a special responsibility. Many of them were elected for party political reasons but given our use of the single transferable vote system, it is possible that some people voted for them within that party because they were women and they wanted more women in parliament so more women's issues might be brought forward. Our presence has nothing to do with feminism but with representation of the electorate, some of whom have interests which they believe might be better represented by women. Fortunately, if they want women in parliament, they are in a position to elect them.

It is interesting to see the change that has occurred with what one might describe as the hereditary seats. In the past, the seat went from grandfather to father to son. Now, one sees some seats going to daughters, some of whom have been extremely effective representatives. One has to look on this as an improvement.

In some areas it can be essential to have women on a delegation. I discovered the importance of this recently when I was asked to go with a delegation of international parliamentarians to see projects in Ethiopia that were being promoted by the World Bank. One of the difficulties was seeing the conditions in Muslim households. A great mistake the American Army has made in Iraq is bursting into women's bedrooms when raiding houses because that will never be forgiven. The delegation I was on was composed of equal numbers of women and men and some of the women were asked to go and see what the situation was in the houses. A man could not be sent and first hand information was needed about what was happening. There might be a useful role for people in that regard.

It was extraordinarily disappointing to hear the comments from two Members of the other House, one from Fianna Fáil and one from Fine Gael, on why women might not want to be on the Council of Europe. I was particularly disappointed by the Fine Gael Member's comments because I had travelled with him, former Deputy Moosajee Bhamjee and former [456]Senator Dan Kiely to darkest Romania. Was there ever a more representative group? We even travelled near Dracula's castle and I was not the slightest bit frightened. Indeed, I was extremely entertained by former Senator Dan Kiely playing the spoons. He was a great success, as I told the Taoiseach when I returned home.

An Cathaoirleach: Information on Rory Kiely  Zoom on Rory Kiely  He is no longer a Member of the House and Members should not discuss people who are not in the House.

Dr. Henry: Information on Mary E.F. Henry  Zoom on Mary E.F. Henry  Our parliamentary debates can influence public opinion and we can relay useful information as well.

We are thankful that Senator White has returned from her dangerous mission to Colombia. She was most courageous because that is a far worse place to visit than most of the places visited by members of the Council of Europe. I was the first person to go into Tehran after the first Gulf War. I went up to the mountains to see what was happening there with the supplies from the International Red Cross. I was sent because I was a middle aged Irish woman and it was thought I was the least likely person to encounter trouble. A Dutchman was the follow-up party. Sometimes it is an advantage to have women on delegations.

The comments I mentioned were an indirect form of discrimination. I look forward to one of the Fianna Fáil members being replaced by one of the women Fianna Fáil members. That would be the best approach because the party has some excellent members who could be most useful on the Council of Europe. There is no reason that preference should be given to another party.

I have devoted my contribution to discussing women, which is no harm. However, I have been sent some amendments by FLAC which is concerned about discriminations in the Bill against non-nationals. I hope the Minister will be willing to accept them. They refer in particular to education and education grants. We will discuss them on Committee Stage.

An Cathaoirleach: Information on Rory Kiely  Zoom on Rory Kiely  I call Senator White.

Ms White: Information on Mary M. White  Zoom on Mary M. White  We agreed earlier to change the order and that Senator Tuffy would speak next.

An Cathaoirleach: Information on Rory Kiely  Zoom on Rory Kiely  The procedure is to cross the floor and I am sticking to that procedure.

Ms White: Information on Mary M. White  Zoom on Mary M. White  It is clear from the Minister of State's previous contributions in the House that he has empathy with this subject. I wish to draw the Minister's attention to a survey on equality in the home which was carried out in Northern Ireland in 2002. It examined gender roles and involved 1,800 adults. The general conclusion of the survey was that there are more women participating in the paid labour market and that women want to be economically independent.

I will continue when the Minister is finished consulting his advisers.

[457]An Cathaoirleach: Information on Rory Kiely  Zoom on Rory Kiely  The Senator can proceed.

Ms White: Information on Mary M. White  Zoom on Mary M. White  I want the Minister to hear my contribution.

An Cathaoirleach: Information on Rory Kiely  Zoom on Rory Kiely  He is consulting his advisers.

Ms White: Information on Mary M. White  Zoom on Mary M. White  I want him to listen to me.

An Cathaoirleach: Information on Rory Kiely  Zoom on Rory Kiely  He is listening.

Mr. O'Dea: Information on Willie O'Dea  Zoom on Willie O'Dea  I can listen and take advice at the same time. I can hear what the Senator is saying.

Ms White: Information on Mary M. White  Zoom on Mary M. White  I am making my point to the Minister of State.

An Cathaoirleach: Information on Rory Kiely  Zoom on Rory Kiely  I appreciate that.

Ms White: Information on Mary M. White  Zoom on Mary M. White  To clarify, I am not criticising the Minister. I would just like him to hear what I am saying.

On a survey of 100 households in the North and the attitudes of men and women to participation in the workforce, the general consensus was that people in society now agree that women fully deserve to participate in the workforce, of which half are women, not only for economic independence but for economic necessity; they have to pay today's high mortgages. However, when a survey was done on men's participation in housework activities, excluding child care and leisure, it was found that men only did 5.92 hours of housework whereas women did 17.15 hours. We are talking about equality in the workplace but from this survey done in Northern Ireland, the results of which I believe would be the same here, women are still carrying the burden of child care and housework.

We talk about a cultural change but I was very surprised by the remarks made by two Deputies last week on the Council of Europe and as a Senator I want to pick up the points raised. Deputy Jim O'Keeffe said that——

An Cathaoirleach: Information on Rory Kiely  Zoom on Rory Kiely  You cannot refer to Members outside the House.

Ms White: Information on Mary M. White  Zoom on Mary M. White  I apologise. One of the Deputies, who is a gentleman — when I meet him in the corridor we engage in a friendly “Hello” but I will have to ask him to account for himself on the next occasion — explaining the reason there were so few women in Irish politics and why there was not a woman on the Council of Europe, said that the notion of going off alone to these meetings for a woman would be quite unattractive. The other Deputy, who shall be nameless and who had a few comments to make about me going to Colombia, made equally derogatory remarks.

We are questioning the reason so few women are Members of the Oireachtas, which is the most exclusive men's club in Ireland. I must qualify that statement, however, by saying that the majority of those who voted for me were men, to [458]whom I am deeply grateful. I would like to see a critical mass of women Members of these Houses so we could achieve more for women in society.

One of the most serious problems facing society is that women want to participate in the workforce but the cost of child care is approximately €800 to €1,000 per month. Young families in the 30s age group have told me that the problem is horrendous. Women who are educated are deciding to stay at home because it is too expensive to pay for child care. Unless we have more vision in terms of legislation, we will deprive ourselves of the economic benefit to society of half the population who are highly educated.

The top priority on my agenda is the peace process in Northern Ireland but my second priority is an improvement in women's participation in the workplace and bringing about harmony between the workplace and the family. When my daughter started school at the age of three and a half, my employer allowed me to go home at 2.30 p.m. to collect her. I was able to make that arrangement but many employers are not so amenable.

It is sad that two experienced Members of this Oireachtas made statements to the effect that we are all too delicate to partake in a parliamentary delegation to eastern Europe. It was said in the Dáil last week that we were not available to participate in this delegation but I would like to record that I was not asked to go.

The Minister misunderstood me when I was trying to explain what I meant. I did not intend to be derogatory in any way. I know he is very interested in this issue but I just wanted to get the ear of the Minister.

Ms Tuffy: Information on Joanna Tuffy  Zoom on Joanna Tuffy  I welcome the Minister of State. On the question of women in politics, it is my experience that one is not generally discriminated against in politics. I accept what was said in the past few days was inappropriate and old-fashioned but that is not the rule. My party encourages women to become involved in politics and to put themselves forward as candidates. My experience in the Labour Party as a candidate, a councillor and a Senator has been, in the main, positive.

To encourage more women to become involved in politics we need to promote politics as a career and improve its image to ensure that both men and women, who do not consider politics as a worthwhile career, would reconsider that view. That is one approach.

A survey was done recently by an academic who surveyed women practising as councillors, Deputies and so on. The overwhelming response was that they did not experience discrimination. Their general view was that they were not discriminated against as practising politicians but that other issues to improve women's experience of politics needed to be addressed. We mentioned one of those when we talked about maternity protection in that facilities needed to be provided [459]to parents to allow them participate in the workforce.

I welcome the Bill and the fact that consultation took place beforehand, as mentioned by the Minister of State. The Minister also mentioned ground-breaking and far-sighted legislation. I would like to claim some credit for that on behalf of the Labour Party because it was the Labour Party which first raised this issue in its 1992 manifesto and in the subsequent Government. I am aware there were problems with the legislation we introduced but it started the ball rolling.

Many of the changes in the Bill are welcome, including the provision regarding discrimination by virtue of association, the provision regarding motor vehicle insurance, the change regarding those under 18 and the statutory school leaving age, and the broadening of the provision regarding accommodation for employees with disability. On that point, much more needs to be done. For example, a recent report in The Irish Times stated that disabled people are almost twice as likely to be unemployed as the rest of the population according to the Government's own think-tank.

A particular area for criticism is the public service because it has failed to achieve a target of employing 3% of disabled workers agreed 27 years ago. The Minister mentioned the constitutional impediment. If there is a constitutional impediment we need to do something to address it. The public service in particular needs to show the way and we need to do much more proactive work to ensure that people with disabilities, and the other categories of people who are discriminated against, are not discriminated against in the workplace.

The extension of protection to self-employed people who are on contracts and their partners is welcome because so much of our employment now is on a contract basis. Many of the multinational companies are making their employees redundant and then re-hiring them on a different contract. People in those circumstances need to be protected.

I want to mention in particular discrimination against older people. There has been some progress in this legislation but much more needs to be done. The Equality Authority's 2002 annual report stated that the fourth largest category of complaints concerned age-related discrimination. The Equality Authority's report, Implementing Equality for Older People, found widespread ageism in our system, and it has made a number of recommendations, as have other bodies such as the National Council for Older People. We need to give priority to this area. People are living longer and have much potential as they get older but we are not using that potential to the best advantage. That is not good for the economy.

Our attitude to older people in society is terrible. One of the cases the Equality Authority dealt with involved a 77 year old man who was [460]turned away from a bar. Another case involved a woman of 29 years of age and a woman of 36 years of age who were turned away from a bar because they were considered too old for the image of the premises. That is an ugly side of Irish society. There is a need for more positive action to try to prevent such incidents. While it is not provided for in the legislation, we should look at prohibiting the fixing of compulsory retirement age in the future. That should be the next step following this legislation. Those who want to work after the age of 65 should be able to choose whether to do so. Their choice to do that should be protected in legislation.

Obviously other things need to be done that relate to older people and other groups. More needs to be done to promote more flexible working arrangements because older people may want to take advantage of that and it may suit their lifestyles. There is a need for a better life-work balance. That would take into account the needs and wishes of other groups in society such as parents. This is the type of area that needs to be looked at.

The largest category dealt with by the Equality Authority concerned those cases that dealt with discrimination on grounds of gender. While progress is being made in our legislation, much more needs to be done. As has been mentioned, the Government needs to lead by example and to improve its record on the appointment of women to State boards.

I stated previously when debating the maternity protection legislation that more needs to be done about parents' rights, paternity rights and parental leave. Ireland is way behind many other EU countries in that regard. That persons can be discriminated against on grounds of race is a growing issue here. In the 2002 report of the Equality Authority, this was the second largest category of complaints. In its literature, the Equality Authority suggests we look at underpinning rights for those who could be discriminated against on grounds of race, by means of legislation similar to what we have tried to do for those with disabilities.

While the Government is putting in place this forward-looking legislation, the same Department, through the Minister for Justice, Equality and Law Reform, has introduced legislation which has introduced many backward steps in terms of our approach to equality. The Intoxicating Liquor Act means that certain categories of people have to go to the courts instead of, as heretofore, to the Equality Tribunal. Pubs are allowed to discriminate on grounds of age, and generally impose an age limit for younger people. The culture, whereby people are discriminated against on these grounds, is being allowed to creep back in.

An Cathaoirleach: Information on Rory Kiely  Zoom on Rory Kiely  It is very disrespectful to the Senator in possession that other conversations should be in progress. I ask Senators to please refrain from such conversations.

[461]Ms Tuffy: Information on Joanna Tuffy  Zoom on Joanna Tuffy  That is an issue I ask the Minister of State to examine. If we are serious about doing more to promote equality in society, we should review the Intoxicating Liquor Act.

Mr. Bannon: Information on James Bannon  Zoom on James Bannon  I welcome the Minister of State. This Bill, which amends the Employment Equality Act 1998 and the Equal Status Act 2000, which in turn amended the 1998 Act, is in line with the need to keep equality legislation under constant review. It is regrettable that it took pressure from the EU to bring forward the legislation. There is much in the legislation that I welcome.

The current law as it pertains to the prior Acts is too weak and needs to be strengthened and upgraded. It is important that we, as legislators, address the many areas of discrimination highlighted in statements, reports and so on of those who have been marginalised over the years, as a matter of urgency. We are on the hind tit with regard to reform in Europe. It is an issue that needs to be addressed and revisited time and again.

In the 16 years since the introduction of the Employment Equality Act and the Equal Status Act which followed, the countrywide profile of our citizenship has changed considerably. We need even more radical changes to Acts, laws and so on, that discriminate against persons on grounds of gender, disability, age, sexual orientation, race or religion. All citizens deserve the right of citizenship and I am fully committed to ensuring all our citizens have equal rights. Any legislation has to incorporate the necessary legislative change and support for initiatives needed within society to bring an end to discrimination and ignorance.

Discrimination inevitably leads to less favourable treatment. Issues regarding incitement to hatred must be looked at as an absolute priority. Equality and acceptance of difference are the key factors that must be addressed if we are to establish the grounds for a multi-ethnic society. It is important that all involved in political parties in local and national government should work to eliminate all remaining areas of discrimination against any of our citizens, with equal immigration and citizenship rights being given to partners of current citizens. The partners of those who came from the Philippines to work in some our hospitals were debarred from coming into this country. This is an area that should be examined. They did not have the same rights as those coming to work here.

Segregation and lack of equality undermines the benefits that could pertain to a multi-ethnic community. Diversity of culture, language, beliefs, values and practices must be recognised and supported. From speaking to my colleagues in city constituencies I am aware of the representations they have received on discrimination and the number of times they have met with stone walls and barriers in dealing with the Department of Justice, Equality and Law [462]Reform and other Departments, in their representations on behalf of constituents.

Recent research has shown that managers of small and medium enterprises have only a scant idea of their duties and obligations under equality legislation. Some even express fear and uncertainty about how to comply with such legislation. There is a need for training in this area. Concerns have also been expressed about the cost of equality and the potential tensions, disruption and discontent in the workplace.

In terms of legislators, Ireland has among the lowest percentage of women in national parliaments in Europe. The figure of 14% is far removed from the UN target of 30% or 32%. Unfortunately, Ireland has an embarrassing record on gender equality in public life. As recently as two months ago there were posters and hoardings around the Seanad and the other House highlighting this record.

The UNIFEM report published last May shows that sub-Saharan African states such as Uganda and Mozambique have a much higher female representation in their national parliaments than Ireland.

Although introduced in 1977 the 3% quota of public service jobs reserved for people with disabilities has now been achieved for the first time in the Civil Service. It has not, however, been achieved across the board in the public service. The abilities of people with disabilities and their potential contribution to the economic and social development of this country have not yet been fully recognised.

Disability groups, which have consistently campaigned for rights based legislation which should be enforceable in the courts, are justifiably disgusted by the proposed disability Bill which will not legally oblige the State to provide extra services for the disabled. Services will be offered if resource constraints permit, which is shameful. Once again, the Government is showing its priorities as being Exchequer driven and the weakest in our society are paying for the Government's broken promises and financial ineptitude. Where is the equality in this regard?

We must assist in the removal of all remaining forms of discrimination in the areas of employment, tax and inheritance law. There should be no bars to any partnership arrangement receiving concessions from employers in regard to taxation rights, benefits and pension rights on the same basis as married couples. This should also be the case with the inheritance of property. As legislators, we must assist in the removal of all remaining forms of discrimination in the areas of civil rights, employment, education and leisure pursuits. Anything less is a derogation of our legislative and humanitarian duties and responsibilities.

The Minister should revisit this issue from time to time. Nothing in society is permanent except change and it is important we do not lag behind the rest of Europe on equality legislation. Real action should be taken in order that we do not [463]have to wait for the EU to push us on issues such as equality.

Mr. Quinn: Information on Fergal Quinn  Zoom on Fergal Quinn  I welcome the Minister of State, Deputy O'Dea, to the House and I also welcome this move to update our equality legislation. However, I want to signal a note of protest regarding the manner in which this movement is taking place. This approach of so heavily amending an original piece of legislation that it becomes quite incomprehensible, especially where both documents are read simultaneously — I found it impossible to get through the two documents — flies directly in the face of the Government's declared intention to make legislation easily understandable and fully accessible to the widest possible public.

Nowhere is this needed more than in equality legislation, which affects a wide range of people. In terms of accessibility to its provisions, the Bill is a step backward rather than the step forward it should be in every respect. On a number of occasions, we have dealt with amending legislation which does just that — amend. I do not suggest that anybody involved is lazy and realise there are time limits within which things must be done. However, it seems a shame that little is achieved with regard to amending legislation, with some exceptions — I accept that some Ministers and Departments have decided to create single pieces of legislation which are easy to understand.

That is my protest. I want to focus my contribution on one of the grounds of discrimination in particular, that of age, which Senator Tuffy has just discussed. Before I deal with that, I want to raise a different issue, which touches on a matter I do not quite understand although the Minister referred to it in his speech. On section 3, the explanatory memorandum to the Bill states:

That intrigued me and I became even more puzzled when I looked at the actual text of the section itself, the relevant part of which reads:

The effect of this is to exclude all people who are employed in a person's home from the protection of equality legislation, across every one of the nine grounds of discrimination. Under this exclusion, I am sure my colleague, Senator Norris, will be appalled to learn that a gay butler is stripped of all protections in my reading of this provision. More generally, the home is precisely [464]the place where many vulnerable people find employment, including those who come from abroad, to which there has been reference in the House today. I am thinking of the widespread use of foreign nannies or au pairs who are all too often exploited by their employers. These workers seem to be those most blatantly discriminated against.

I can think of no possible reason for this exclusion and I ask the Minister to provide an explanation for it, and a justification if he can. I realise the Minister has touched on this in his contribution. He used the phrase “in the context of the race and framework employment directives”. The Minister might explain that as I do not understand where it fits in.

I was particularly disturbed to note when I read the EU directive on which this updated legislation is supposed to be based, that there is no mention whatever of this exception in that document. The directive is, in fact, quite explicit in stating that the intention is to apply it to all kinds of employment without exception. On the face of it, the exclusion set out in section 3 is bizarre, highly undesirable and may be illegal from an EU perspective. I am sure the Minister has an explanation and I await enlightenment on this issue with considerable interest.

However, as I said at the outset, I would like to focus on the age ground of discrimination. With the indulgence of the House, I will talk not about something that is in the Bill but about something that is not although in my view it should and, I hope, will be inserted if I can make a sufficiently convincing case to the Minister. I have a particular interest and experience in this area, not just because I have reached retirement age but because more than a decade ago, in 1993, when I had been in this House just a few weeks, I succeeded in having an amendment on this very issue accepted by the Government of the day.

The measure concerned was the Unfair Dismissals (Amendment) Bill 1993 which had passed all Stages in the Dáil without anyone noticing that it did not include the age ground as the basis of an unfair dismissal. To give the relevant Minister full credit, the lady who is now Leader of this House, Senator O'Rourke, immediately recognised that a goof had been made despite the Bill having gone through the Dáil and various consultations. When I drew the matter to her attention, she immediately agreed to accept my amendment.

It is tempting to think we have come a long way in the ten years since then but I wonder if this is really true. Our population is steadily getting older but we show very little sign of having come to terms with that. One symptom of this is that there is nothing in this Bill, or in the whole corpus of equality legislation, that sets out to attack the concept of compulsory retirement.

I will make my position on this matter quite clear. I do not wish, as apparently the Society of Actuaries does, to raise the age of retirement. I have no wish to force anybody to work beyond [465]the accepted retirement age. While I realise the Government is poised to introduce a measure that will raise the retirement age in the public service, that is a separate question to the one I raise. I am not talking about forcing anybody to work up to a certain age or to work beyond that age but about a situation where a person is able and willing to continue working, but is prevented from doing so by a compulsory retirement age.

People vary greatly in their wishes on this subject which is why I am against compulsion in this regard. Some people cannot wait to get their gold watch and are happy to move on to a life of retirement. Others are greatly distressed at the thought of stopping work and argue that they are fully capable of carrying on. Others again would like to work part-time or in a reduced capacity but find that the taxation and pension regimes make that more difficult to arrange than it should be.

I suggest to the Minister that the time is fast approaching — indeed, that it has already come — to outlaw the entire concept of compulsory retirement at an arbitrary age. The key word here is “arbitrary”, which is where the discrimination arises. No one would argue that older people are as physically capable as younger people. No one would argue that some extremely old people do not begin to lose some of their mental faculties. For such people, an honourable retirement is an appropriate way to spend their last days. To argue that at a particular set age, usually 65, all people, without exception, become incapable of further employment is not just untrue but flagrant discrimination. As such, it should feature in equality legislation that purports to remove all discrimination on any of the nine grounds.

I am not arguing that abolishing the concept of compulsory retirement would achieve all we are setting out to do in restructuring our society or coping with the challenge of an ageing population, to which we have referred on a number of occasions in this House. In that picture, making compulsory retirement illegal would be a very small dot on a large canvas. It would be an important start because it would signal our alertness to the problem. Making compulsory retirement illegal would be a measure with considerable benefits with almost no cost at all. At a personal level, no one would be forced to work beyond whatever was the normal retirement age for their occupation. At a business level, no one would be forced to go on employing a person who was incapable of doing their job. Such a change would be a huge boon to people who would prefer to go on working. In most cases there would be a clear benefit to the companies for which they work. To the wider community, the benefits of having someone continue to be economically active are too obvious to need spelling out.

I express the hope that during the time it takes for the Bill to pass through the legislative process, the Minister will reflect on what I and others have said here today. Why not make a little bit of [466]history by taking this small step forward? Apart from the omission on which I have focused, I welcome the Bill and wish it well. I am particularly pleased as an employer to see a strengthening of the conditions under which employment must be provided for people with disabilities. The existing legislation in this regard is much too weak. It provides an easy way out for any employer who wishes not to employ disabled people. The new provision is far more balanced and should be fair to everyone concerned.

I welcome the Bill. I have made some points which I hope the Minister of State will take into account.

Minister of State at the Department of Justice, Equality and Law Reform (Mr. O'Dea): Information on Willie O'Dea  Zoom on Willie O'Dea  I thank the Senators who contributed for their helpful advice and recommendations.

My colleague, Senator Kett, asked if we had reached the 3% target right across the public service. The latest figures indicate that we have reached 2.7%, which is fairly close to the 3% target, but we will not become complacent if we reach the 3% target. Our aim is to improve on that figure.

Senator Tuffy referred to the 1992 Labour Party manifesto. While I am not familiar with the document, I assume it contained all these wonderful ideas about equality legislation and so on. As usual, it was my party which put them in place. Senators Quinn and Tuffy were concerned about ageism in society and introducing legislation to prohibit the fixing of a compulsory retirement age. I understand and empathise with everything the Senators said. To the best of my recollection — I am open to correction on it — the Minister for Finance touched on the issue in his budget speech. He certainly adverted to the possibility of raising the compulsory retirement age from what it is at present in the public service. He also referred tangentially to considering whether the idea of fixing a compulsory retirement age should be abolished by law. I would like to make history on the issue. It is a decision for Government with wide socio-economic implications. Significant people in Government are thinking in that direction and I will convey to them the views of Members of the Seanad.

Senator Tuffy referred also to State boards. I have put a system in place to regularly monitor how we are succeeding in increasing female representation on State boards. It involves getting a six monthly report from Cabinet and across the public sector. I have already done two of these and the situation has improved from one to the other. I will shortly get the next report and I hope the situation will have improved again. If not, I will speak to some people.

Senator Bannon said the Government's approach to people with disabilities was Exchequer-driven. “Exchequer-driven” is one of the clichés which is trotted out occasionally. Woe betide the Government that is not Exchequer-[467]driven. It is basic economic common sense, national school stuff, that when one is deciding what to spend, one must take account of what is coming in. Otherwise one would find oneself in the position in which the Government left us in 1987. After coming into office in 1983 on the basis that the outgoing Government, led by Mr. Haughey, was spending too much, the next Government more than doubled the national debt in four years. It took years to get out of that hole. That was the result of policies pursued by a Government which was not Exchequer-driven.

Ms Terry: Information on Sheila Terry  Zoom on Sheila Terry  They were different times.

Mr. O'Dea: Information on Willie O'Dea  Zoom on Willie O'Dea  We will return to those bad times if we pursue policies which take no account of what is coming into the Exchequer.

The reality is that the Government has a serious commitment to assisting people with disabilities. Currently we have done something which is done on very rare occasions in regard to legislation which Members of the Oireachtas, either Dáil or Seanad, have not yet seen. We have asked our officials to discuss the matter with the disability legislation consultation group. We asked everyone to treat the matter confidentially because it would be nonsensical to have a discussion in the public domain on legislation which Members of the Oireachtas have not yet seen. Unfortunately, someone — I will not point a finger — has broken the commitment of confidentiality by going to the national press and quoting verbatim from meetings with Government officials. I was asked to go on radio on Monday to discuss the matter with the disabilities legislation consultation group. My reply to RTE was that I would not discuss legislation which Members of the Oireachtas had not seen. I will not get into a discussion on the forthcoming disabilities Bill today for the same reason. However, Senator Bannon and others can rest assured that as soon as the Bill is published, which will not be too long, I will be available for debate and consultation at all times on all aspects of it.

Senator Quinn referred to the complexity of the legislation, with which I have a certain sympathy. I will talk to my officials about the matter. The legislation appears to be unnecessarily complex in the way it is drafted — perhaps there is not a better way to do it. It does not make the legislation easier to access, so to speak.

The Senator is the only Member who specifically raised the issue of section 3. He must understand it is not a step backwards, just a step forward. The Employment Equality Act 1998 outlaws discrimination in regard to employment on nine grounds. A section in the Bill excludes all people working in private households. These people get no protection under the legislation and could be discriminated against on any one of the nine grounds and they would have no case. They are completely discriminated against. We are [468]narrowing that exception to people employed in a family home, doing certain types of defined employment, where there is a balance to be found between the right of the employer — the householder — to privacy and the right of the person who is working there to be treated the same as any other worker in any other location. I have looked at the section and I am not happy with certain aspects of it. As it could lead to certain undesired results, I have asked my officials to look again at the issue. I will table an amendment on Committee Stage when we can discuss the matter in more detail.

Senator Terry referred to the rates of pay for secretaries in the Dáil. I am not familiar with that issue but I will inquire about it. She also referred to the fact that the Government is reactionary in regard to equality legislation. I refute totally that remark.

One has to say something that sounds critical of the Government or legislation, but there is no point opposing on grounds that are completely spurious and demonstrably false. The reality is that in any trip I have made to Europe in the short period since we assumed the Presidency, I noted that our EU colleagues are absolutely astounded at the advances Ireland has made on equality legislation. The fact that three EU directives form the basis of this Bill proves this point. However, 95% of what the European Union wants is already in place as a result of the 1998 Act and the Equal Status Act 2000. We are one of very few countries in the European Union, if not the only one, to have reached this level. Regardless of the Labour Party manifesto in 1992, we started the process in 1998 and built on it with the equal status legislation in 2000. The people in the Commission who are proposing and drafting the measures in question were absolutely astounded at the advances in our equality legislation. I can think of several individuals who expressed such sentiments, but I do not want to address this topic today.

On the Traveller programme that was terminated by the Minister for Justice, Equality and Law Reform for very good reason, provision has been made in the Estimates to replace it. An announcement will be made very shortly on what I believe will be a more comprehensive and focused programme.

It was suggested that the Government does not want to encourage family friendly work policies, but it has just presented a Maternity Protection Bill and will shortly introduce an adoptive leave Bill in the Seanad. I will be introducing the maternity protection legislation in the Dáil. We are introducing such legislation in the face of the most sustained opposition from employers and those in the business sector. They say they are not against women working or giving people rights to maternity leave, etc, but that it is anti-competitive and putting a disproportionate burden on employers. Despite such statements, we introduced legislation and will take the risk. We are in an era in which the media are constantly [469]haranguing us about competition and anti-competitive practices in the Irish work environment and we need to be careful because we are now competing with countries that can offer much cheaper labour, etc. It is a dangerous time to be placing extra burdens and costs on employers. It might not be very popular, upmarket or politically correct to say this — it is politically incorrect — but it is a fact and Governments must deal with facts. We will be putting relevant legislation through the Dáil tomorrow.

I do not have the exact figure, but we are spending almost €1 billion on the provision of child care. This is a substantial contribution given the size of the economy. I live in the real world and, like everyone else, I have to go to the doorsteps and catch votes. I had to go to doorsteps with our councillor so he can get re-elected and with new candidates so they can get elected in the upcoming local elections. I am aware of the problems on the ground associated with child care. It is a question of balancing one's resources. I would love the Government to be able to find more imaginative ways to address this issue, such that we would be able to provide more child care places, at a cheaper cost, for all the taxpayers' money we are laying out. The other side of the coin is that when people are entrusting their children, who are the future of this country, to others to look after them, there must be appropriate safeguards in place. This is where the cost begins to come into effect. As I stated, we have committed a considerable sum of taxpayers' money to this issue. I wish we could either spend more money on it to further alleviate the problem or else obtain better value for the money we are spending.

When Senator Terry re-examines section 9 of the Bill and the Employment Equality Act 1998, which provides the context for it, she will note that the section, rather than insulting the disabled through the use of words such as “burden” and “disproportionate”, is designed to help the disabled in a dramatic way. The Supreme Court has decided that employers cannot be required to accommodate the disabled if their accommodation imposes more than nominal cost. In other words, the court has ordained that an employer can be compelled to spend only a pittance on accommodating the disabled. This is the Supreme Court's interpretation of Article 43 of the Constitution.

As a result of an EU directive on employment, we are in section 9 able to go further than the Supreme Court judgment. The directive allows us to compel employers to provide measures that will not impose a disproportionate burden. This is recognised as taking us much further than where we already stood. The language used, such as “burden” and “disproportionate”, might sound off-putting but it is taken directly from the European directive. There will also be a section in the disability Bill dealing with this area. I have discussed the wording in question with the disability legislation consultation group and I can [470]breach confidentiality in respect of our discussions to the extent that I can say the group is absolutely over the moon about it. It is absolutely delighted and feels in no way offended or upset by the fact that we are doing something to compel employers to accommodate them far more substantially.

Section 24 alludes to the lower rate of pay for a person with disability when that person has a lesser output of work in a particular period when reasonably compared to that of an employee without the disability. This is allowed under the legislation as it stands and under the relevant European directives, to the best of my knowledge. Section 24 is an attempt to improve the situation and to narrow the exclusion that already exists. If I had more time to explain this, I would do so, but suffice to say that I suspect that behind the thinking of those in Europe and those who framed the original legislation in 1998 is the view that if an employer has the choice of employing a disabled person or an able-bodied person, he will naturally employ the able-bodied person if the disabled person does not produce or cannot produce as much work as the able-bodied person in a particular period, given that the output can be directly measured. The section is to enable employers to take on people with a disability where they would not otherwise do so.

Ms Terry: Information on Sheila Terry  Zoom on Sheila Terry  That could lead to abuse.

An Cathaoirleach: Information on Rory Kiely  Zoom on Rory Kiely  Order, please.

Mr. O'Dea: Information on Willie O'Dea  Zoom on Willie O'Dea  It could lead to abuse but if the provision did not exist, there would be even more abuse because the disabled person would not get the job in the first place. We have discussed this with people who represent the disabled and they are very enthusiastic about it. Any provision brought in to help people can be subject to abuse, but that should not stop one from trying to help them if one can.

On discrimination against young people trying to obtain car insurance, we have for the first time removed the lower age limit of 18 in respect of insurance matters. We are saying that anybody of any age, including a 17 year old with a driving licence, can as a result of this legislation make a claim stating he or she is being discriminated against in so far as insurance is concerned.

  5 o'clock

Reference was made to remarks made during the week by two of my colleagues in the Lower House on women travelling to the Council of Europe. I join with everybody in deploring and regretting those remarks and I dissociate myself and the Government from them entirely. I thank Senators for their contributions and I am sure we will have a very lively and informed Committee Stage debate on the Bill.

Question put and agreed to.

Committee Stage ordered for Thursday, 5 February 2004.


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