Ivana Bacik (Independent) | Oireachtas source

In welcoming the Minister of State, I should have acknowledged his long personal commitment in respect of this issue and the fact that he was an original sponsor of the Bill when we introduced it in 2013. In respect of amendment No. 14, I echo the words of Senators Zappone and Power. My personal preference without reference to any laws would be simply to delete section 37(1)(b) as well. As Senator Power acknowledged, we have received clear legal advice not just as individuals but in terms of the legal opinion of the Irish Human Rights and Equality Commission, which was published a year ago. I understand that the Government has received advice from the Attorney General that deletion is not possible. I am looking at the words of the senior counsel who drafted the legal opinion for the Irish Human Rights and Equality Commission. They stated that removing section 37(1) entirely could constitute a violation of rights of employers and employees to religious freedom. They went on to say that they viewed this option as far too legally uncertain. The last thing we want to do is to open up this important and overdue Bill to legal challenge. Unfortunately, we are in a position where we must amend rather than delete section 37(1), particularly section 37(1)(b). Therefore, we must make sure that the amendment offers as strong a protection against discrimination as possible.

In respect of amendment No. 13, which was moved by the Minister of State, I am glad to hear him say that the Bill as published is largely constitutionally sound. Although the Government amendments do extensively change the text of the original Bill, it is clear that the structure of the Bill is maintained and that some of the key principles are maintained within it. As others have said, the amendments significantly improve the Bill and greatly strengthen and enhance protection for employees against discrimination, which is hugely important. Amendment No. 13 strengthens the protections against discrimination both in terms of section 37(1)(a), which concerns more favourable treatment on religion grounds, and, more importantly, section 37(1)(b), which allows employers to take action reasonably necessary to prevent employees from undermining religious ethos.The new test that will be inserted into section 37 if amendment No. 13 is passed is very strong. It sets the bar much higher.

I will speak generally on Government amendment No. 13 before we get into the individual amendments to the section. The new subsection (1A) that is proposed to be introduced would change the nature of the current section 37(1)(a) which allows more favourable treatment on the religion ground. The new section 37(1A) would say that where a publicly funded educational or medical institution gives more favourable treatment on the religion ground, that shall be discrimination. It is clearly stated that it shall be discrimination unless it "does not constitute discrimination on any of the other discriminatory grounds, and ... [that] the religion or belief ... constitutes a genuine, legitimate and justified occupational requirement having regard to the institution's ethos". That is a much stronger statement against discrimination. The chilling effect, of which the Minister of State has spoken and of which we are all very aware, is particularly evident in the current section 37(1)(b) which, as I say, allows employers to take action against employees where they are seen to undermine religious ethos. The new subsections (1B) and (1C) dramatically change the position for employees or prospective employees in publicly funded education or medical institutions - schools or hospitals.

Amendment No. 13, as I see it, would introduce a new one plus five test for publicly funded institutions. The provisions say that it shall be discrimination where any action of this sort is taken by an employer. It is presumed to be discrimination. The five test is, first, that the action must be objectively justified by the aim of preventing the undermining of the religious ethos. Second, the means of achieving the aim must be appropriate and necessary. In subsection (1C) there is a threefold further test that an employer must get over to show that an action is objectively justified and that the means used are appropriate and necessary and, crucially, in subsection (1C)(a), (1C)(b) and (1C)(c), the action must be rationally and strictly related to the religious ethos of the institution which, effectively, requires an institution to show what its ethos is. It is saying, in effect, that the institution must show how the action it has taken is rationally and strictly related to its ethos. That is hugely important. Second, it must be a response to the conduct of the employee. I think Senators Power and Zappone have referred to this. This is a hugely important insertion, that there is a requirement of conduct rather than just of status. Specifically subsection (1C)(b) says that the action of the employer cannot be a response to the employee's or prospective employee's gender, civil status, family status, sexual orientation, age, disability, race, or membership of the Traveller community. Finally, in subsection (1C)(c), the action of the employer must be proportionate to the conduct of the employee or prospective employee. There is a further threefold test as to how a court or tribunal would measure proportionality, looking in particular at the consequences of the action for the employee or prospective employee, at any other action the employer could have taken and, crucially, the actual damage caused to the religious ethos of the institution. While I understand it is difficult to define ethos or to require institutions to define religious ethos, effectively the combined text of amendment No. 13 would require an employer seeking to justify discriminatory action to put forward a definition of its ethos to justify the action it had taken to prevent an employee undermining its ethos. I think the bar is set so high that it would be almost impossible to envisage a situation in which an employer could discriminate against an employee under this provision, and that is to be welcomed.

I accept the Minister of State's point that this is a great improvement on the mechanism in our original Bill, which was simply that directions or guidelines could be issued on the criteria in section 37(1)(b). I think this hugely strengthens it because it sets out this one plus five test by which publicly funded institutions will be judged if they attempt to take action against employees that is discriminatory.