Averil Power (Independent) | Oireachtas source

Amendments Nos. 1 and 3 to amendment No. 13 are designed to remove the distinction in the text of the current wording from the Government between public and private institutions. Essentially, they would mean that the tougher conditions in subsections (1)(a) to (1)(c) would apply to all religious educational and medical institutions with the religious ethos covered by subsection (1) whether they are funded by the State or not.

The distinction between State-funded bodies and those not funded by the State is not made in the main body of the Employment Equality Act. Generally, self-funded businesses are not exempted from equality requirements simply because they do not receive State funding. As a general principle, the Employment Equality Act imposes the same obligations on State employers and State-funded bodies as it does on private businesses. The Government's amendment considerably improves the position for those working in State-funded bodies. However, it leaves the existing wording of section 37(1) for non-State-funded bodies.This potentially allows schools and medical institutions to buy their way out of compliance with the tougher requirements and clearly privileges wealthier communities, schools and organisations that are better able to survive without State funding. It is an unjustified distinction that will leave people who work in private institutions, for example private nursing homes which do not receive any funding from the State, without the protection they deserve. It will leave them in exactly the same situation that we are now saying is utterly unacceptable in the context of public employees. They will be left in the same precarious, frightening and uncertain situation and that is not good enough.

It is also important to note the distinction between State funded and privately funded bodies is not referenced in any way in article 4 of the framework directive. While there is possibly some logic in holding State funded bodies to more rigorous tests than for those not funded by the State, the mere fact a body is not funded by the State should not give it a licence to discriminate more easily. No institution should be allowed to exclude or treat somebody less favourably on account of, for example, their sexual orientation or civil status. However, that is what is happening here. The new test states that somebody may only be subjected to discrimination if they have engaged in some form of conduct which amounts to an undermining of the ethos, but that test will not be in place for employees of private institutions. Therefore, they will continue to fear that by merely being themselves and merely being open about the fact they are lesbian, gay, bisexual or transgender or that they are in a non-marital relationship or they have a child outside marriage or about any other aspect of their personality and personal relationships, the will be subjected to discrimination. This is utterly unacceptable. It is unjustified and is, arguably, repugnant to EU law.

EU law is, of course, superior to our Constitution. The European directive does not make a distinction between public and private organisations although it does provide for an ethos exemption. The Government has pointed to that exemption on grounds of ethos, but the EU directive expressly states that the exemption should not justify discrimination on a ground other than religion, such as, for example, sexual orientation, age or disability. Nor does the directive provide any basis for a distinction to be made between State funded and non-funded institutions. While it permits more favourable treatment to be made on the religion or belief ground alone, it does so only where by reason of the nature of the activities or the context in which they are carried out, a person's religion or belief constitutes a genuine, legitimate and justified occupational requirement.

The Minister of State proposes to leave the wording in section 37(1) that an employer can act if he believes that such action is reasonably necessary to protect ethos and this is the only statement in respect of private institutions. However, the directive goes much further and makes it clear that the test the Department is applying for public bodies, which makes it clear it must be a genuine occupational requirement, should also be applied to private bodies. It expressly says this in the exemption the Government is relying on. It says the exemption can only be relied on where the person's religion or believe constitutes a genuine, legitimate and justified occupational requirement. Therefore, the Government's proposed wording falls short of the requirements set out in the directive. I believe that for that reason it is repugnant to the directive.

A European Commission report from 2007, entitled Religion and Belief Discrimination in Employment - the EU Law, by Professor Lucy Vickers of Oxford Brookes University, states that in Ireland too, section 37(1) of the Employment Equality Act contains an exception to the non-discrimination principle for the purposes of maintaining the religious ethos of an institution. Professor Vickers states then states that this is broader than is allowed for in the directive, as it does not provide that religion or belief must be relevant to the particular job in question, nor does it limit the exception to discrimination based on the grounds of religion or belief so that it can not be used to justify discrimination on another ground. Elsewhere, Professor Vickers has said that article 4(2) of the directive allows for exceptions allowing religious organisations to maintain a religious ethos and require loyalty of staff to that ethos, but only where such exceptions constitute a genuine, legitimate and justified occupational requirement in regard to the institution's ethos.

I have tabled these amendments to ask the Minister of State to look again at this issue. I welcome the fact that we are making improvements the protection for public employees, but there is a serious gap in the legislation in that sufficient protection is not being provided for those who work in the private sector. This distinction is not made in the EU directive. It will leave people in private institutions, such as private nursing homes, fully private primary schools and other private institutions that would fit under the definition of private body in the legislation, without the protection we are providing for others. That is unacceptable. It would be preferable to distinguish based on the requirements of the role, what the job is, whether working in a private or public context. With this legislation we should be asking what exactly is their role. We should ask whether it is a role that actively involves propagating a religion, such as the role of rabbi, priest or minister. We would accept that institutions, whether public or private, have a right to hire such people based on their religious belief. However, if it is a role that is in no way related to such requirements, such as a gardener in a convent or an administrator, accountant, lawyer, teacher or doctor in a private institution where their job has nothing to do with ministering a particular faith, no institution public or private should be allowed to discriminate against that person solely on the grounds of their sexual orientation, gender, family status or any other inherent personal characteristic.