Aodhán Ó Ríordáin (Dublin North Central, Labour) | Oireachtas source

I am very pleased to be here today on the resumption of Committee Stage of this important Bill. To respond to Senator Power, it is my intention and my hope that I will be the final Minister to deal with it.

Senators will be well aware of my strong opinions on the need to amend the current section 37(1) of the Employment Equality Act 1998 and that I, together with Senators Ivana Bacik and Mary Moran, as well as Deputies John Lyons, Dominic Hannigan and Ciara Conway, first introduced this Bill to the Houses in 2013. I also want to acknowledge the work done by Senator Power on her previous Bill on the issue and a similar Bill two weeks ago from Deputies Catherine Murphy, Ruth Coppinger and Joe Higgins.

The existing section 37(1) of Employment Equality Act 1998, as amended by section 25 of the Equality Act 2004, provides that where a religious, educational or medical institution which is under the direction or control of a body established for religious purposes or whose objectives include the provision of services in an environment which promotes certain religious values shall not be taken to discriminate against a person if it gives more favourable treatment, on the religion ground, to an employee or prospective employee where it is reasonable to do so in order to maintain the religious ethos of the institution, or it takes action that is reasonably necessary to prevent an employee or prospective employee from undermining the religious ethos of the institution.

The provision was previously contained in the Employment Equality Bill 1996, which was referred by the President to the Supreme Court under Article 26 of the Constitution. While the court held that Bill to be unconstitutional on other grounds, the constitutionality of what is now section 37 was upheld as a reasonable balance between the competing constitutional rights involved. While we can seek to find a new balance that better meets the needs of employees, the logic of the Supreme Court decision is that a balance does need to be struck; it is not simply a matter of deleting certain elements of the existing Act.

For this reason, the Government, in the programme for Government, committed to amending section 37(1) to ensure that its operation leads to a fairer and more equitable balance between the rights of freedom of religion or association, on the one hand, and, on the other, the right of persons in employment, or prospective employees, to be free from discrimination and to privacy in their personal lives.

A key feature of the Bill before us is the distinction it makes between religious institutions that are entirely privately funded and those which are funded by the taxpayer. The rationale is that in the case of the second category, the Government has the right - and arguably the duty - to protect employees who are paid from the public purse from unfair treatment or discrimination.

On examination by the Attorney General's office, the Bill was found to be essentially constitutionally sound, although some amendments are required to the text as published to enhance its constitutional robustness.

Aside from some technical changes, the most significant change that needs to be made - the precise details of which I will bring before the House on Report Stage - is to replace a proposed power for the Minister for Justice and Equality, in consultation with the Minister for Health or the Minister for Education and Skills, to issue directions or guidelines to relevant employers for the purpose of giving effect to the proposed amended provision. It was felt that this approach would be unsafe, as the courts could find it to be an unlawful delegation of authority by the Oireachtas. Instead, the Government amendments will oblige relevant employers in religious-run schools and hospitals to show that favourable treatment of an employee or prospective employee is limited to the religion ground and that action taken against a person is objectively justified by reference to that institution's aim of protecting its religious ethos and that the means of achieving that aim are appropriate and necessary.

The proposed new subsection will provide that action taken against an employee or prospective employee on the religion ground shall not be regarded as justified unless it is rationally and strictly related to the institution's religious ethos; a response to conduct by a person which undermines or would undermine the religious ethos of the institution, rather than a response to that person's status under any of the other discrimination grounds, such as sexual orientation, that are set out in equality legislation; and proportionate to the conduct of the employee or prospective employee, having regard to alternative action the employer could take, the consequences of any action taken for the employee or prospective employee and the actual damage caused to the religious ethos of the institution.The aim is to raise the bar so that religious run schools and hospitals will have to show real damage to their ethos, are precluded from discrimination on any of the other equality grounds and that any action taken is reasonable and proportionate. I wish to signal my intention to the House to use the opportunity afforded by the Bill to advance on Report Stage a number of other, mainly technical, amendments to existing equality legislation.

On rent supplement and housing assistance payment, the most significant amendment is to prohibit discrimination in the letting of residential accommodation on the basis that a person is or is not in receipt of rent supplement or housing assistance payment. It will eliminate the inclusion, by some landlords, of references to rent supplements not being accepted in advertisements for residential rented property. This will involve an amendment to sections 2 and 6 of the Equal Status Act 2000.

I also intend to amend the definitions of indirect discrimination in the Equality Acts to follow precisely the definitions in the relevant EU directives and their evolving interpretation by the Court of Justice. Therefore, amendments will be advanced to the definitions of indirect discrimination in the Employment Equality Act 1998, Equal Status Act 2000 and the Pensions Act 1990 to bring the letter of the legislation into line with those directives.

While the Employment Equality Act 1998 prohibits discriminatory advertisements, there is no provision to allow an aggrieved party - in relation to an employment opportunity - to take a case to the Equality Tribunal other than a referral by the Irish Human Rights and Equality Commission, formerly the Equality Authority. I intend to remedy this deficiency by allowing the person, him or herself to take a complaint, as distinct from allowing cases to be taken solely by the IHREC. This will involve amendments to sections 2, 8(5), 12 and 13 of the Employment Equality Act 1998.

While the Framework Employment Directive 2000/78/EC, which outlaws age discrimination in employment, was transposed into law by the Equality Act 2004 based on the wording in the directive, the case law of the Court of Justice has since established that national provisions laying down retirement ages could amount to age discrimination if they cannot be justified under the specific provisions of the directive. The court has also held that the provision of fixed-term contracts on the basis of age constitutes age discrimination and would require justification under Article 6 of the directive. I therefore intend to bring forward amendments to bring our domestic legislation more into line with these judgments. The amendments required are to sections 6 and 34 of the Employment Equality Act 1998.

The State is obliged under the European Economic Area agreement and the EU-Swiss agreements to ensure that benefits in admission to any course of vocational training offered by an educational or training body are extended to EU nationals and are also extended to EEA and Swiss nationals, in the absence of an explicit provision to the contrary in these agreements. In practice, the same benefits in terms of such fees and admission are afforded to EEA and Swiss nationals, but the equality legislation does not refer to Swiss and EEA nationals and needs to be amended to explicitly reference them. I will bring forward the necessary amendments on Report Stage. Amendments required here are to section 12 of the Employment Equality Act 1998 and to section 7 of the Equal Status Act 2000. Finally, as these amendments will extend the scope of the Bill, it will be necessary to amend on Report Stage the Bill's Long and Short Titles along with the collective citations.

In conclusion, I look forward to engaging further with Senators on Report Stage and ensuring that an effective Bill is passed by both Houses and enacted as quickly as possible.