Willie O'Dea (Limerick East, Fianna Fail)

I have some sympathy with Senator Terry's fears about the use of terminology like "unreasonable burden" in the context of disability but, unfortunately, I cannot accept the amendment for legal reasons. Before the European directive was transposed into law, the Supreme Court decided that extra costs cannot be imposed on employers in respect of people with disabilities other than nominal costs. Employers cannot be forced to accommodate people because of their disability if it imposes a burden on them other than nominal cost. That was the decision of the Supreme Court under Article 43 of the Constitution.

The framework employment directive overrode that decision and allowed a different test, known as a disproportionate burden, which gives some more leeway to employers and improves the position of people with disabilities. In addition to using this terminology, and we are taking it directly from the framework directive, the EU Commission went on to explain what it means and set out the parameters of it, which we repeat in the legislation.

We have got cover, as it were, to override the limitation put by the Supreme Court because of the EU framework employment directive. That being the case, we have to use the terminology in the EU framework employment directive, which usefully sets out what it means, and we have put that into the legislation as well.

While I sympathise with what the Senator said about the terminology, and perhaps the people in Brussels did not consider that in the context of people with disabilities and the inappropriateness of the terminology, that is the terminology which overrides the constitutional restraint put on us and because of that, I could not drop it now and insert completely new terminology. It would not be sustainable.