Ms Deirdre Malone:

The other Bill proposed relating to implementing the directive is the Equality (Miscellaneous Provisions) Bill 2013. We have some comments in respect of the drafting. There is provision within the Bill for a fixed-term contract to be offered to someone over retirement age. We are seeking clarity around the drafting, especially in regard to section 6(3)(c) of the 1998 Act and the proposed amendment to section 4 of the 2013 Bill.

Deputy Ferris has drafted the other Bill. As we have said, we are neutral on which Bill would be enacted since both are compliant with the provisions in the EU directive. However, I wish to draw the committee's attention to some particular things. We wish to raise a concern relating to the potential costs. In particular, the 2014 Bill permits age discrimination and disability discrimination where an employer can demonstrate that treating the person equally would entail significantly increased costs. Cost alone is not generally an accepted appropriate justification for discrimination.

There is a question over the potential impact on unfair dismissals. We maintain that the Unfair Dismissals Act permits fair dismissal on the grounds of capability. We believe that the drafting in its current form may remove an employer's obligation to participate in performance improvement programmes and other managed processes whereby someone could be fairly dismissed. As currently drafted, the Bill would permit an employer or company to get a report from a doctor to the effect that a person is not fit to do the job. The ground of capability could be a fair ground to dismiss a person. Another aspect we highlighted relates to looking to establish whether a person was capable of doing the job. We take the view that there may be an increased cost to employers where they have to assess employees on a regular basis, for example, on a yearly basis, once they have reached a particular point.

We had concerns on the drafting and around the language used. For example, reference is made to significantly increased costs. How could that be shown? What other evidence would be required? There should be more clarity around the wording.

There is a potential conflict with section 16 of the 1998 Act dealing with disability and when someone cannot do a job. This is a new departure in terms of introducing disability on the grounds of age. The idea is to ensure that both are compatible.