Roderic O'Gorman (Dublin West, Green Party) | Oireachtas source

Sexual harassment and discrimination have absolutely no place in any workplace and employers should be open in addressing these challenges when they occur. I thank Senator Ruane, her staff and the co-sponsors of the Bill for their work in bringing forward this important legislation. The objectives of the Bill are laudable and, accordingly, the Government will not oppose it.

No person should feel they have to hide their experiences, and no one should ever be put under pressure to conceal harassment or discrimination to protect an individual, an institution or a company reputation. Victims of harassment often have an incredibly difficult time coming forward and the responsibility of an employer is to recognise where there is harassment or discrimination in their workplace and protect employees by taking steps to prevent or address this.

Senator Ruane's Bill addresses the use of NDAs following a harassment or discrimination suit. It is fair to say not much is known about the extent of this issue in Ireland. Senator Seery Kearney said that in her experience in employment law she had not come across the practice. Senator Sherlock likewise said she had not come across specific examples. We are aware of high-profile international examples, which the sponsors of the Bill have cited as an influence on their work on the issue, of the use of non-disclosure agreements to conceal significant and long-running instances of sexual harassment and discrimination. However, there is no research on the point in this jurisdiction. That is why I was particularly interested to hear of the instances Senator Ruane cited of people she had engaged with. Senator Gavan cited examples he was aware of through his trade union work. I hope to engage further with Senator Ruane to get detail about these real-life instances so we can understand how these NDAs are being used. It is my intention to commission a piece of research led by my Department into this phenomenon in Ireland and the circumstances in which NDAs are used in this manner.

There are a few issues with the drafting of the Bill, which is not to take away from it as a piece of work. The Employment Equality Acts currently do not consider the use of NDAs in the context of sexual harassment and discrimination.This Bill will obviously introduce a new concept to legislation.

While we may wish to prevent the use of non-disclosure agreements to conceal instances of harassment or discrimination, we do not want to fetter the ability of an individual employee to negotiate his or her own settlement. Non-disclosure agreements have a place within general employment law, a point to which a number of Senators referred.

We did have a concern that some of the Bill's provisions would appear to make non-disclosure agreements unworkable from a practical point of view. Accordingly, we would require some careful rewording of certain provisions to ensure a balance is found which does not impinge on the individual employee.

There are also no other legislative provisions in place regarding the use of non-disclosure agreements in employment. I understand they are commonly used for the protection of business confidentiality in settlement cases. It is important to avoid unintended or far-reaching consequences to non-disclosure agreements in general arising from the specific purposes Senator Ruane is seeking to deal with in this Bill.

There is some degree of an information gap in this area. However, there are also some real-life experiences of the use of non-disclosure agreements in the pernicious way as has been described. I look forward to the research the Department will do to gather those real-life experiences and using it to shape appropriate legislation.

The Bill proposes to amend the Employment Equality Acts 1998 to 2015, which prohibit discrimination, harassment and sexual harassment under the nine grounds of discrimination in employment, including vocational training and work experience. The Employment Equality Acts cover a range of aspects of employment, including equal pay, access to employment, work experience, terms and conditions of employment and dismissal. Under the Acts, where an employee feels he or she has been discriminated against under the legislation, that employee can make a complaint to the Workplace Relations Commission. This legislation provides important protections to employees and makes a clear statement to employers that they must provide a workplace free from harassment, sexual harassment and discrimination.

We know there are ongoing instances of discrimination. The Workplace Relations Commission annual report for 2020 shows that in the reporting period, 939 employment equality complaint referrals were received, citing 1,260 specific grounds. Of these complaints, 290 cited the disability ground, 278 cited the gender ground, 210 cited race and 206 cited age as at least one ground for the complaint. These statistics show us the range of discrimination which may be taking place. I am heartened by fact complaints are being made, however, as it shows employees are aware they have these protections and have recourse where they feel discrimination has occurred.

It is important our equality legislation be agile and responsive to the changing nature of the workplace. As we have seen from the Covid-19 pandemic, the workplace has come to mean many different things. It can even be as basic as your own kitchen table. The programme for Government recognises the need to ensure our equality legislation provides the necessary support to all employees. It contains two important commitments for possible amendment of the legislation.

The first commitment relates to the gender ground under the legislation. It commits to amending the gender ground in equality legislation to ensure someone discriminated against on the basis of gender identity is able to avail of this legislation. Everyone is entitled to live in their true identity and to be who they are inside and outside of work. The Government is aiming to provide certainty to all people that the protections of the equality Acts apply to them. Work to examine this issue is under way in line with the commitment to review the Employment Equality and Equal Status Acts to ensure transgender, non-conforming and intersex people have explicit protection within the equality grounds in the national LGBTI+ inclusion strategy, the oversight committee for which I chair.

The second commitment relates to the examination of the introduction of a new ground of discrimination based on socioeconomic disadvantaged status to the Employment Equality and Equal Status Acts. This is an important commitment and reflects the growing understanding that socioeconomic status can have a wide-ranging impact on people's lives.

These commitments are central to the focus on the Equality Acts in my Department. Any changes to the legislation, however, require careful consideration and the development of detailed proposals. I anticipate some form of public consultation on the inclusion of socioeconomic status as a ground for discrimination will take place in the coming months to understand the experiences of those who face this discrimination. This work will inform any plans for legislative proposals.

I hope to include any examination of the issue we are discussing today in the work on the programme for Government commitments. I request the sponsors of this Bill to allow time to conduct any research. This will ensure we are properly identifying and addressing this issue in a way that takes account of the policy good while not preventing an individual employee from making his or her own choices.

Equality is an ideal we are striving for but it is one which needs protection. The Equality Acts provide that protection and, as I have noted, they need to be responsive to the changing world. The programme for Government commitments reflect the seriousness with which the Government regards that legislation. I am happy the Oireachtas is supporting us in identifying issues which may need to be addressed. Once again, I thank the sponsors of this Bill for their work and for highlighting this particular concern.

As Senator Martin said earlier, it is measured legislation. My Department would like to undertake discrete research on the real-life use of non-disclosure agreements in the way the Bill seeks to outlaw. I have outlined several concerns about some elements of the wording. However, I do not set out those small caveats in a negative way. I am taken with the particularly pernicious practice the Bill seeks to outlaw. I look forward to working with Senator Ruane and her staff in bringing out a strong legislative solution.