Averil Power (Independent) | Oireachtas source

I thank the Minister for outlining his intentions for Report Stage. I also acknowledge the additional criteria he has set out, the new test, in requiring that actions taken are rational, proportionate and are responses to actual conduct and not to a person's individual characteristics, as I had called for. It is a significant improvement in the Bill and I welcome that. I believe the Minister has listened to earlier debate on the requirements for forms of conduct in the workplace. However, I have a number of concerns which I ask the Minister to reflect upon before Report Stage.

The Minister has indicated that a distinction should be retained between public and private institutions. I can accept that if an institution is publicly funded then it should be subject to the highest possible standards and the most rigorous application of our equality law, but I am not convinced that we cannot go further in respect of our private institutions. I do not believe that an institution being a private one should give it a licence to discriminate without any requirement that its action is rational and is related to a genuine occupational requirement.

The Bill, as currently drafted and as the Minister has indicated, intends to retain the section that private institutions' actions are reasonably necessary to maintain the ethos. The reason we are changing the language for the public institutions is that we all accept that that language is too vague and a source of insecurity for people. They are unsure what it does and does not mean; what does "ethos" mean and what is "reasonably necessary"? The Minister is putting in a higher test for public institutions that requires their actions to be rational and related to an occupational requirement. The absence of such a test for private institutions is problematic and I ask the Minister to look at this again.

It is fair enough to require that somebody be of a particular faith where that is a genuine occupational requirement for the job, but that may not always be reasonable in respect of the post involved, as seen in case laws from other countries. A religious run youth service discriminated against a person on the grounds that the person was not of the same faith. It was struck down because the person, a youth worker, was not involved in any form of religious service so the employer lost on the basis that it could not show a genuine occupational requirement.

The European directive does not make a distinction between public and private institutions. The Irish Human Rights and Equality Commission points this out in its report; that there are no grounds for a blanket distinction between the two. I ask the Minister to reflect on that.

I welcome the test which is introduced in the Bill. The Bill refers to recurrent grants and, in this context, perhaps the Minister would clarify the language around what is and is not considered to be a private institution. For example the Mater public hospital is a public institution but is the Mater private a fully private institution? Will the Bill lead to a situation where a doctor who is working in both can feel comfortable working in the public hospital but still be nervous working in the private one? Greater clarification is needed around what is and isn't a public institution and what is meant by recurrent annual grants? Could it be the case that the State could give a significant capital grant to an institution which would still be able to evade responsibilities?

I would also look for more clarity on the conduct tests. There have been problems in the US in situations where, for example, a teacher has been out openly for years without any difficulty, and then married. The act of getting married is taken by the employer as conduct contrary to the ethos, and then the person faces discrimination. We need to be clear in respecting the will of the people, as overwhelmingly expressed in our referendum in May in favour of marriage of equality. There can be no question of a person being discriminated against in any form of employment, public or private, simply for exercising their constitutional right to get married. I believe this is unclear under the current wording and under the Report Stage amendments, which is why I have tabled that an amendment stating that no action could be taken against somebody for being married, for being clear in the workplace that they are married, for wearing a wedding a ring or for speaking about the fact that they are married. I ask the Minister to look at making that clearer in the final wording in the legislation.

The INTO and GLEN are concerned about other scenarios in regard to what does and does not constitute conduct. Take for example the challenging of homophobic comments in the staffroom or the classroom - is that conduct? Is that challenging the ethos of the institution?What about a case in which one child bullies another because the other child has two fathers, but the teacher says every family is equal? Would that be conduct undermining the ethos of the school? People have a genuine concern about clarity around these issues. One of the biggest problems to date has been fear of the unknown. No employer has won a discrimination case on the basis of section 37(1) of the Employment Equality Act 1998. However, the difficulty is that it creates a chilling effect for employees, and people feel the need to self-censor and hide. Many teachers who have come out find that their colleagues and principals are overwhelmingly supportive, while their boards of management do not have an issue. Others are petrified, however, of taking that step. We need to have clarity on this. Will the Minister of State respond on what does and does not constitute conduct that would undermine the ethos of the institution?

Another scenario raised with me is one in which a teacher who works in a religious school attends a gay pride parade. Could the employer take exception to a photograph in the local newspaper of the teacher carrying a banner at a gay pride parade? I hope, rationally, that that would not be the case. However, the Irish National Teachers Organisation, INTO, has raised this concern. What about protests to repeal the eighth amendment? That is not related to an inherent personal characteristic but to a political viewpoint. The teacher unions are concerned about this too. They feel that only conduct that is related to the workplace or directly to the job should be judged by the employer. It should not be about somebody's personal views, private life or political participation which an institution might claim is contrary to its ethos in the broader sense. My concern is that the Bill in its current wording and the wording proposed by the Minister of State does not restrict the conduct to the workplace. It just refers to conduct, which might be too broad.