Dr. Desmond Ryan:

I am conscious that Mr. Neville has looked at this in detail so I will make one brief point and pass back to him. I want to make a point about Article 26 and the Employment Equality Bill, a Supreme Court challenge to the employment equality draft legislation prior to its subsequent enactment in a different form in the 1998 Employment Equality Act, which I do not believe has been raised in any of the submissions.

A particular provision in that Bill imposing an obligation on employers in the context of the disability ground was deemed to be unconstitutional. There was a specific reference by the Supreme Court to the fact that the proposed legislation would have required employers to disclose to third parties the financial status of their business. That is a very important statement in the Supreme Court decision in the Article 26 employment equality case because the concern expressed about an obligation being placed on employers to disclose their financial status is one which seems to me to be particularly pressing in this context. I question whether that is proportionate to the aim being pursued in circumstances where there could be all manner of reasons an employer may not be well placed to accede to the request. As long as it can explain that in a transparent and objective manner, it would still strike the balance sought to be achieved in the legislation.

I also share the concerns which have been expressed by the representatives of the Law Society in relation to the use of the word "accede" in section 3(1). There is a real risk there of unconstitutionality. One way to deal with that would be to prefer wording like "meets" or "covers" or "is already in accordance with or reflects the situation". If we boil it down, what the committee and the sponsor of the Bill are trying to do is ensure for employees that their contracts of employment reflect the reality of the work they are doing. That is a basic right and there is a dignity interest in that. There is also a clarity and a certainty that comes with it. In fairness, that is not the same thing as saying that an individual worker should be entitled to accrue rights which he or she never had prior to seeking them. Before she moved to the Supreme Court, Ms Justice Laffoy determined a case in the High Court under the fixed-term work legislation. In McArdle, she specifically clarified that the effect of being able to have one's rights vindicated under the fixed-term work Act and to be entitled to a contract of indefinite duration did not and could not enable an employee to secure better rights or a better job than he or she had prior to bringing a claim. That is very authoritative dicta from an extremely respected now Supreme Court judge in employment law. It is an important principle in the context of considering the potential constitutionality concerns.