The Employment Equality Bill, 1996

• Jurisdiction: Ireland
• Judgment Date: 15 May 1997
• Neutral Citation: [1997] IESC 6
• Date: 15 May 1997
• Docket Number: 118/97,[S.C. No. 118 of 1997]
• Court: Supreme Court

[1997] IESC 6

THE SUPREME COURT

HAMILTON C.J.

O'FLAHERTY J.

DENHAM J.

BARRINGTON J.

KEANE J.

118/97

(IN THE MATTER OF) EMPLOYMENT EQUALITY BILL 1996

IN THE MATTER OF ARTICLE 26 OF THE CONSTITUTION OF IRELAND

AND

IN THE MATTER OF THE EMPLOYMENT EQUALITY BILL, 1996

Citations:

CONSTITUTION ART 26.2.1

CONSTITUTION ART 26

EEC DIR 75/117

EEC DIR 76/207

ANTI-DISCRIMINATION (PAY) ACT 1974

EMPLOYMENT EQUALITY ACT 1977

CONSTITUTION ART 26.1

CONSTITUTION ART 26.2

CONSTITUTION ART 26.3

HOUSING (PRIVATE RENTED DWELLINGS) BILL 1981, IN RE 1983 IR 186

MATRIMONIAL HOME BILL 1993, IN RE 1994 1 IR 305

EQUAL STATUS BILL 1997

TUOHY V COURTNEY 1994 3 IR 1

CRIMINAL LAW (JURISDICTION) BILL 1975, IN RE 1977 IR 129

ELECTORAL (AMDT) BILL 1983, IN RE 1984 IR 268

ADOPTION (NO 2) BILL 1987, IN RE 1989 IR 656

ART 26 & THE REGULATION OF INFORMATION (TERMINATION OF PREGNANCIES) BILL 1995, IN RE 1995 1 IR 1

ART 26 & THE OFFENCES AGAINST THE STATE (AMDT) BILL 1940, IN RE 1940 IR 470

EAST DONEGAL CO-OPERATIVE V AG 1970 IR 317

EMPLOYMENT EQUALITY BILL 1996 PART III

CONSTITUTION ART 29.4.5

EMPLOYMENT EQUALITY BILL 1996 PART II

EMPLOYMENT EQUALITY BILL 1996 S6

EMPLOYMENT EQUALITY BILL 1996 S8

EMPLOYMENT EQUALITY BILL 1996 S6(3)

EMPLOYMENT EQUALITY BILL 1996 S17

EMPLOYMENT EQUALITY BILL 1996 S12

EMPLOYMENT EQUALITY BILL 1996 S37

EMPLOYMENT EQUALITY BILL 1996 S33

EMPLOYMENT EQUALITY BILL 1996 S37(6)

EMPLOYMENT EQUALITY BILL 1996 S12(1)

EMPLOYMENT EQUALITY BILL 1996 S12(2)

EMPLOYMENT EQUALITY BILL 1996 S12(3)

EMPLOYMENT EQUALITY BILL 1996 S12(4)

EMPLOYMENT EQUALITY BILL 1996 S12(5)

EMPLOYMENT EQUALITY BILL 1996 S12(6)

EMPLOYMENT EQUALITY BILL 1996 S37(1)

EMPLOYMENT EQUALITY BILL 1996 S37(2)

EMPLOYMENT EQUALITY BILL 1996 S6(3)(b)

CONSTITUTION ART 40.1

CONSTITUTION ART 44.2

CONSTITUTION ART 40.2.2

QUINNS SUPERMARKET V AG 1972 IR 1

DPP V QUILLIGAN (NO 3) 1993 2 IR 305

MURTAGH PROPERTIES V CLEARY 1972 IR 330

MURPHY V STEWART 1973 IR 97

COX V IRELAND 1992 2 IR 503

UNFAIR DISMISSALS ACT 1977

EMPLOYMENT EQUALITY BILL 1996 S16(1)

EMPLOYMENT EQUALITY BILL 1996 S34(3)

EMPLOYMENT EQUALITY BILL 1996 S34(4)

EMPLOYMENT EQUALITY BILL 1996 S34(4)

EMPLOYMENT EQUALITY BILL 1996 S34(5)

BRENNAN V AG 1983 ILRM 449

NICOLAOU, STATE V BORD UCHTALA 1966 IR 567

MASSACHUSETTS BOARD OF RETIREMENT ET AL V MURGIA 427 US 307

CONSTITUTION ART 44.2.2

CONSTITUTION ART 37

CONSTITUTION ART 44.2.5

CONSTITUTION ART 42

CONSTITUTION ART 44.1.2

CONSTITUTION ART 44.1.3

COMMISSIONERS OF INCOME TAX V PEMSEL 1891 AC 531

BARRINGTONS HOSPITAL V COMMISSIONERS OF VALUATION 1957 IR 299

WORTH LIBRARY, IN RE 1995 2 IR 301

MULLOY V MIN FOR EDUCATION 1975 IR 88

MCGRATH & O RUAIRC V TRUSTEES OF MAYNOOTH COLLEGE 1979 ILRM 166

AMERICAN CIVIL RIGHTS ACT 1964

CORPORATION OF THE PRESIDING BISHOP OF THE CHURCH OF JESUS CHRIST OF THE LATTER-DAY SAINTS V AMOS 483 US 327

"ETHOS" CHAMBERS ENGLISH DICTIONARY

HEALTH ACT 1970 S76

EMPLOYMENT EQUALITY BILL 1996 S6(2)(g)

EMPLOYMENT EQUALITY BILL 1996 S16

EMPLOYMENT EQUALITY BILL 1996 S35

HALSBURYS LAWS OF ENGLAND 4ED V44 PARA 862

EMPLOYMENT EQUALITY BILL 1996 S2(1)

EMPLOYMENT EQUALITY BILL 1996 S35(4)(5)

DREHER V IRISH LAND COMMISSION 1984 ILRM 94

O'CALLAGHAN V COMMISSIONERS OF PUBLIC WORKS 1985 ILRM 364

CAFOLLA V O'MALLEY 1985 IR 486

DISABILITIES ACT 1996 (US)

DISABILITY DISCRIMINATION ACT 1996 (UK)

ANTI-DISCRIMINATION ACT 1991 (QUEENSLAND)

HUMAN RIGHTS CODE (ONTARIO)

HUMAN RIGHTS ACT 1984 (BRITISH COLUMBIA)

CONSTITUTION ART 43

BLAKE V AG 1982 IR 117 1981 ILRM 34

CONSTITUTION ART 45

BUCKLEY V AG 1950 IR 67

EMPLOYMENT EQUALITY BILL 1996 S14

EMPLOYMENT EQUALITY BILL 1996 S15

KELLY IRISH CONSTITUTION 3ED 458

EMPLOYMENT EQUALITY BILL 1996 S10(4)

EMPLOYMENT EQUALITY BILL 1996 S11(4)

EMPLOYMENT EQUALITY BILL 1996 S61(4)

EMPLOYMENT EQUALITY BILL 1996 S63

LIBEL ACT 1843

DEFAMATION ACT 1961 S7

HUGGINS, IN RE 1730 2 STRA 883

POLICE COMMISSIONERS V CARTMAN 1896 1 QB 655

DEPT OF AGRICULTURE & TECHNICAL INSTRUCTION V BURKE 1915 2 IR 128

WEEDS & AGRICULTURE SEEDS (IRL) ACT 1909 S5(1)

WEEDS & AGRICULTURE SEEDS (IRL) ACT 1909 S5(2)

SWEET V PARSLEY 1970 AC 132

KING V AG 1981 IR 233

VAGRANCY ACT 1824 S4

PREVENTION OF CRIMES 1871

PENAL SERVITUDE ACT 1891

MAHER V AG 1973 IR 140

ROAD TRAFFIC ACT 1968 S44

HARDY V IRELAND 1994 2 IR 551

O'LEARY V AG 1993 1 IR 103

O'LEARY V AG 1995 1 IR 254

LENNON V CLIFFORD UNREP SUPREME 23.5.96 1996/6/1573

O'CALLAGHANV CLIFFORD 1993 3 IR 603

EMPLOYMENT EQUALITY BILL 1996 S58(1)(a)

CONSTITUTION ART 38.1

HAUGHEY, IN RE 1971 IR 217

EXPLOSIVE SUBSTANCES ACT 1883 S4(1)

OFFENCES AGAINST THE STATE ACT 1939 S24

R V OAKES 1986 1 SCR 103

CHAULK V R 1990 3 SCR 1303

EMPLOYMENT EQUALITY BILL 1996 S58(2)(a)

EMPLOYMENT EQUALITY BILL 1996 S59(1)

Synopsis:

Constitutional Law

Article 26 reference; Bill to promote equality and prohibit discrimination and harassment in employment; whether Court obliged to consider whole Bill and all its provisions; whether exemption from prohibition on age discrimination for those aged 65 and over or under 18 contrary to Art. 40.1; whether exclusion from Bill's provisions for members of Defence Forces, Garda Siochana and Prison Service contrary to Art. 40.1; whether provisions prohibiting discrimination on grounds of age contrary to employers" rights under Art. 40.3.2 or Art. 43; whether provision allowing religious, educational or medical institution under direction of religious body to discriminate on religious ground where reasonable to do so to maintain religious ethos or to take action reasonably necessary to prevent employee from undermining religious ethos contrary to Art 40.1 or Art. 44; whether provisions obliging employers to provide appropriate facilities for disabled employees without payment of compensation contrary to Art. 40.3.2. or Art. 43; whether imposition of vicarious liability on employer for criminal acts of employee contrary to Art. 38.1 and Art. 40.1; whether exemption from provisions of Bill concerning employment of individuals with propensity to engage in unlawful sexual behaviour contrary to Art. 40.1; whether provisions allowing for document certified by Director of Equality Investigation to be received as prima facie evidence of facts in criminal proceedings contrary to Art 38.1 and Art. 40.1; whetherprovisions empowering authorised persons to enter premises to obtain information material to investigation of case contrary to Art. 40.5; whether requirement on those attending before Director or Labour Court to answer non-incriminating questions put to them contrary to Art. 40.3.2 Held: Court obliged to consider whole Bill and all its provisions; provisions obliging employers to provide facilities for disabled employees without payment of compensation unconstitutional; imposition of vicarious liability for criminal acts unconstitutional; proof by way of certificate unconstitutional; rest of Bill not found repugnant (Supreme Court: Hamilton C.J.*, O'Flaherty J., Denham J., Barrington J., Keane J.(* Decision of the Court delivered by Hamilton C.J.) 15/05/1997)

In the Matter of Article 26 of the Constitution of Ireland and in the Matter of the Employment Equality Bill, 1996 - [1997] 2 IR 321

1 This is the decision of the Supreme Court on the Reference to it by the President of the Employment Equality Bill, 1996 (hereinafter referred to as the Bill) pronounced pursuant to Article 26, Section 2, sub-s. 1 of the Constitution of Ireland.

The Reference

2 By order given under her hand and seal on the 3rd day of April 1997, the President, Mary Robinson, after consultation with the Council of State, referred, in pursuance of the provisions of Article 26 of the Constitution, the Bill to the Supreme Court for a decision on the question as to whether the said Bill or any provision or provisions thereof is or are repugnant to the Constitution or to any provision thereof.

Proceedings on the Reference

3 Counsel were assigned by the Court to argue that the Bill is repugnant to the Constitution.

4 Prior to the oral hearing, counsel assigned by the Court presented in writing heads of the argument intended to be made by them and submissions of law in support of such arguments.

5 These were replied to in writing by and on behalf of the Attorney General together with submissions of law on his behalf.

6 The oral hearing then took place before the Court on the 29th and 30th days of April 1997 and on the 1st, 2nd, 6th and 7th days of May, 1997 . During the course of such hearing the Court heard the oral submissions made by Counsel assigned by the Court and Counsel on behalf of the Attorney General.

Long Title to Bill

7 The long title of the Bill states that it is:-

" An Act to make further provision for the promotion of equality between employed persons; to make further provision with respect to discrimination in, and in connection with, employment, vocational training and membership of certain bodies; to make further provision in connection with Council Directive 75/117/EEC on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women and the Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions; to make further provision with respect to harassment in employment and in the workplace; to change the name and constitution of the employment equality agency; to repeal The Anti-Discrimination (Pay) Act, 1974and to amend the Employment Equality Act, 1977; and to provide for related matters."

8 As is apparent therefrom the purpose of the Bill is to make further provision for the promotion of equality between employed persons, the prohibition of discrimination between persons, to deal with...