NO constitutional, statutory, contractual or property rights of any persons as employees would be interfered with in the passing of the Employment Equality Bill 1996, the Supreme Court was told yesterday.
On the third day of the case to test the constitutionality of the Bill, counsel on behalf of the Attorney General opened submissions to argue that the provisions are within the Constitution.
The Bill was referred by the President, Mrs Robinson, on April 3rd to the Supreme Court under Article 26 of the Constitution for a decision on whether it was repugnant to the Constitution. The Supreme Court has 60 days from the date of the referral to give its decision. The Bill was passed by the Dail on March 26th.
Yesterday, Ms Mary Finlay SC, for the Attorney General, said the Bill was complex because it sought to confer on the individual statutory rights in areas which were in themselves complex.
While it was in one sense a far reaching and pioneering Bill, it was also limited. As the title indicated, it was a Bill to make further provision for the promotion of equality between employed persons. The word "promotion" was important.
The Bill did not set out to achieve equality in employment and did not do so. It was limited because what it sought to do was outlaw discrimination on a number of grounds. These were grounds of gender, marital status, family status, sexual orientation, religion, age, disability, race and the travelling community. These referred to all matters that affected employment and remuneration, with the exception of pensions.
The ambit of the Bill sought to prohibit discrimination. It did not seek to put a straitjacket on employers. It did not seek to outlaw irrational discrimination. For instance, an employer who was a soccer follower could still ask a prospective employee what sports he followed. If the prospective employee said rugby or cricket, then the employer could say no, thank you" under the provisions.
If the Supreme Court did not find any section of the Bill repugnant to the Constitution and it became law, then if one looked at an employee today before it was law and then after the Bill was enforced, absolutely no constitutional, statutory, contractual or property rights of any persons as employees were interfered with in the passing of the Bill.
It was acknowledged that as far as employers were concerned, the Bill might interfere with certain of their property rights. However Ms Finlay said it was her submission that it was a permissible interference under the Constitution and not in breach of it.
Ms Finlay said the rights of the individual and collective religious bodies were protected under the Constitution to profess and practise religion, and that right was not restricted in any way by the Bill.
She then turned to the first of a number of exceptions in the Bill which allow for an employer to discriminate. One exception provided that persons over 65 years and under 15 could be discriminated against.
The Chief Justice, Mr Justice Hamilton, asked if the age discrimination was constitutional under Article 40 (1).
Article 40 (1) states that all citizens shall, as human persons, be held equal before the law. It adds that this should not be held to mean that the State should not in its enactments have due regard to differences of capacity, physical and moral, and of social function.
Ms Finlay submitted there were a number of rational reasons as to why the Oireachtas would pick 65. If one looked at the whole social welfare structure in the State, the pension was given at the age of 65 or 66. There was also the occupational pension structure.
On another section dealing with allowing measures to be taken in order to facilitate the integration into employment of persons over 50, Ms Finlay said the section was not authorising any particular action to be taken. All it was saying was that nothing was going to prevent the taking of measures in order to facilitate into employment persons over 50.
The prohibition on age grounds in the Bill could not be said to constitute an unjust attack on an employer's rights, she said.
The Chief Justice said the problem was that the court was being asked to decide in the absence of any evidence and it was one of the imperfections of such referrals, to say the least.
The hearing continues today before five judges.