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

The group of amendments includes amendments Nos. 5, 7 and 9, but, due to the structure of the Equality Acts, part of amendment No. 8 is also relevant. However, as that amendment mainly deals with a different issue related to the position of Swiss and EEA nationals, it has been grouped with amendment No. 18 with which it will be discussed.

We are considering a group of amendments that relate to advertising. Section 10 of the Employment Equality Act 1998 prohibits discriminatory advertisements. Section 85(1)(d) allows the Equality Authority, now the Irish Human Rights and Equality Commission, to refer a publication or display to which section 10 applies to the director of the Equality Tribunal, soon to be the Workplace Relations Commission, for adjudication and decision. However, there is no provision to allow an individual who considers that he or she has been discriminated against in an employment opportunity to take a case. The Equality Tribunal brought this issue to my Department’s attention, with a request that the current provision be amended so as to allow an aggrieved individual to submit a complaint. The tribunal pointed to a case in which the Court of Justice of the European Union stated: “The fact that an employer states publicly that it will not recruit employees of a certain ethnic or racial origin constitutes direct discrimination in respect of recruitment within the meaning of Article 2(2)(a) of Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, such statements being likely strongly to dissuade certain candidates from submitting their candidature and, accordingly, to hinder their access to the labour market.” The judgment refers to the race directive and access to the labour market. Therefore, the changes to the legislation being proposed include access to vocational training and membership of certain bodies, in addition to access to recruitment and promotion. To ensure the amendments proposed do not allow for what might be termed an “officious bystander” to take a case, that is, where that person may not be a potential candidate for the particular vacancy or membership that may be involved, the approach taken in the drafting of the amendments is to amend sections 8, 12 and 13 of the Act to ensure there is a real connection between the person claiming discrimination and the advertiser.

The definition of the word "advertisement" in section 2 of the Employment Equality Act is being expanded to include a public statement as per the judgement of the European Court of Justice. We are not proposing a similar amendment on the equal status side and this question needs further consideration as the court judgment does not refer to the relevant directive. This is a question that is being examined further in consultation with the Equality Tribunal and, if deemed appropriate and necessary, can be addressed in future legislation, but I do not anticipate that we will have completed this examination in time for our consideration of this Bill.