Check Against Delivery

 

16 June 2015

　

I wish to thank Deputies Coppinger, Higgins and Murphy for bringing this Private Members’ Bill before the House today.

 

Deputies will be well aware of my own strong convictions on the need to amend the current section 37(1) of the Employment Equality Act 1998. I entirely agree with the proposing deputies that it is wrong to discriminate or exclude people from employment or to deny them services under the nine grounds of the Equality Legislation . It is our collective belief across this house and Irish society that one’s gender, sexual orientation, civil status, religion, age, disability ethnicity or membership of the travelling community should never be used as a means to discriminate or exclude. It is for that very reason that I was one of the proposers of the Employment Equality (Amendment) (No. 2) Bill 2013 that is currently awaiting committee stage in the Seanad.

 

Since my appointment as a Minister of State I have met with Union Representatives including the INTO LGBT group on a number of occasions to discuss this topic with them, including launching their ‘Teachers’ for Yes Campaign’ earlier this year as well as speaking at the INTO LGBT annual conference. I have heard first hand their stories about teachers who are afraid to be themselves in their workplace. This is not acceptable. These are the people who train our young people, who teach them how to read and to write and who give so much to our society. Divorcees, co-habiting couples and unmarried parents experience the same chill factor. They all deserve to have the right to be themselves in their place of work.

 

The existing section 37(1) of Employment Equality Act 1998 (as amended by section 25 of the Equality Act 2004) provides that where a religious, educational or medical institution which is under the direction or control of a body established for religious purposes or whose objectives include the provision of services in an environment which promotes certain religious values shall not be taken to discriminate against a person if–

 

• it gives more favourable treatment, on the religion ground, to an employee or prospective employee where it is reasonable to do so in order to maintain the religious ethos of the institution, or

 

• it takes action which is reasonably necessary to prevent an employee or prospective employee from undermining the religious ethos of the institution.

 

The provision was previously contained in the Employment Equality Bill 1996 which was referred by the President to the Supreme Court under Article 26 of the Constitution. While the Court held that Bill to be unconstitutional on other grounds, the constitutionality of what is now section 37 was upheld as a reasonable balance between the competing constitutional rights involved. While we can seek to find a new balance that better meets the rights of employees, the Supreme Court decision outlines the need for balance to be struck; it is not simply a matter of deleting certain elements of the existing Act.

 

While the provision was found in 1997 to strike a reasonable balance between the rights of employees on the one hand and freedom of religion on the other, there is legitimate concern that in practice it has not worked. Primarily its operation is regarded as having a particularly chilling effect on LGBT people in the educational system; however, it also affects lone parents and divorcees who are restricted in discussing their private lives with their colleagues in the safety of their staff room.

 

It should be noted that many countries provide for a equivalent of Section 37 in their statute book, the main difference is that most countries do not have the vast majority of their schools and hospitals under religious patronage.

 

During my numerous meeting with the INTO LGBT, I have heard stories of teachers who are gay, lesbian, bisexual and transgender experiencing feelings of isolation and disempowerment in their work. They feel constrained in what they can disclose about their personal lives to their colleagues fearing that this will affect their career or even their daily working experience in the school. Some even fear the prejudices of parents and students. Personally I have always believed that it is a sad reflection of our Equality Law that it could be used to make people feel so unequal!

 

For this reason, the Government, in the Programme for Government, committed to amending section 37(1) to ensure that its operation leads to a fairer and more equitable balance between the rights of freedom of religion or association, on the one hand, and the right of persons in employment, or prospective employees, to be free from discrimination and to privacy in their personal lives, on the other.

 

This Government is committed to advancing equality for LGBT people. During our term of office we have introduced the Child & Family Relationships Bill, recognising the different types of families that exist in our state. We held a Marriage Equality referendum, which both government parties supported, to ensure that LGBT citizens can get married. We introduced the Gender Recognition Bill to allow people to identify in their chosen gender. This is the next step on this journey.

 

On the 23^rd of May there was a collective celebration of joy amongst LGBT people and their allies as we watched this country enshrine tolerance and love into our constitution. I was so proud to stand with my LGBT friends and cheer with them as we watched the passage by our people of full Marriage Equality into our law. I was so proud to be Irish that day as we became the first country in the world to grant full Marriage Equality by means of a public vote. But it saddened me that some of the people with whom I was celebrating had to go to work on the subsequent Monday morning and pretend like nothing had happened. They could not mention that they had celebrated nor could they mention the benefit to them that this change in the law would have. This is why in one of my first public statements after the referendum I made it clear that it was my intention to continue on the work I started in 2013 and ensure that this section of our law is amended as soon as possible.

 

One of the stories that has stuck with me, since I began my work on this topic, is that of the visit by the INTO LGBT group to meet with our President Michael D. Higgins at Áras an Uachtaráin this year. This was to be a day of huge celebration and recognition of many years of campaigning work. As the group assembled, they walked with pride and joy up to the main entrance of the residence. Standing together, walking together. Unfortunately some began nervous as a group photograph was suggested. Deeply uncomfortable, at least half a dozen of these teachers stepped to the side, afraid of any consequences that being photographed would have for their career. We live in a republic and quite simply this should not happen!

 

Tonight’s Bill is somewhat different to the approach being taken by the 2013 PMB, in that it proposes removing the right of religious-run educational and medical institutions to take action against an employee who is undermining the institution’s ethos. However, I believe the spirit of what we are trying to achieve is much the same, which is why the Government will not be opposing the Bill before us.

 

I have a fear that in tonight’s Bill there is a conflict with the constitutional protection for freedom of religion and of religious groups to establish their own institutions of the type at issue here. It is also unclear as to how it would provide any guidance on how to resolve disputes between employees and employers. It would remain the case that an employer has the right to take action against employees who act against the employer’s best interests and disputes would – following the deletion of the existing provision, as proposed - fall to be resolved under generally-applicable labour relations law. I believe that the best course of action is to progress with the 2013 PMB as it insists that employers who are religious institutions providing publicly-funded services would have to meet a high standard of justification for any action taken against an employee on grounds of undermining the institution’s ethos.

This Bill does not distinguish between religious institutions run wholly for private purposes compared to those providing a social, educational or medical service to the public financed by state funding. This is an important distinction that must be provided for in any amending legislation to ensure its constitutionality.

 

The Government has already accepted the principle of the Employment Equality (Amendment) (No. 2) Bill currently before the Seanad to amend section 37(1). It will be tabling a number of amendments of its own to improve the Private Member’s Bill when the Committee Stage resumes later in the Seanad. The drafting of these amendments is being finalised at present and will be announced as soon as they are received from the Office of Parliamentary Counsel and approved by Government. The intention thereafter is to have the Bill enactment as quickly as possible.

 

The test the Oireachtas must meet when legislating on this matter is to do as the Supreme Court instructed and maintain a proportionate balance between the rights of religious denominations to manage their own affairs and maintain institutions for religious and charitable purposes and the rights of citizens to have full equality before the law and to earn their livelihood.

 

The intentions of the present Bill are commendable, but we all need to bear in mind very clearly that there is no room for error and any attempt at reform could be struck down by the courts in the future. This could have a serious adverse impact on precisely the people who we are trying to protect. Given the delicate competing rights involved here, it is vital that we carefully consider our approach to reform with the advice of the Attorney General to ensure that it is constitutionally robust and immune from future successful challenge. For that reason, while the Government is not opposing this Bill, we consider that it is better to continue as we are doing which is to advance reform of section 37(1) through amendments to the already mentioned Employment Equality (Amendment) (No. 2) Bill that is currently before the Seanad.

 

I hope that the Deputies can understand my reasons for this approach, which are not against the good intentions of the Bill, and accept that the Government’s is as anxious as any to see this matter addressed as quickly as possible in a way that is constitutionally compliant.

So much of my work as Minister for New Communities, Culture, Equality and Drugs Strategy is based around what dignity of employment brings to an individual or a community.

 

A job brings financial security but it brings a sense of purpose and self esteem. Traveller Groups point to the high level of unemployment in their community as a key issue to be addressed.

 

The comprehensive employment strategy for people with disabilities which I am currently working on will help those with disabilities into the workplace and protect those workers who acquire a disability.

 

Gender Equality in the workplace and introducing progressive family leave legislation is a key commitment for this year.

 

Work is central to our identity as citizens. IT is a place where we can grow and contribute. It is where we must be able to be ourselves. There can be no chill factor - that is why we will amend Section 37 of the Employment Equality Act.