Willie O'Dea (Limerick East, Fianna Fail)

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 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 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 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, "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 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 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.

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 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 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 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, 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.