Equality and discrimination is an area of employment law that can be fraught with difficulty for employers and employees alike. Whilst many employees may feel as though they have been treated unfairly by their employer, these feelings can be heightened significantly where the employee feels they have been treated unfairly on the basis of a discrimination ground (or “protected characteristic”). For this reason, it is very important that employers keep abreast of developments in equality law so that they may ensure they are treating employees fairly whilst concurrently protecting their own business.
Section 37, Employment Equality Acts.
Section 37(1) of the Employment Equality Acts is quite a contentious piece of equality legislation as it permits educational or medical institutions with a religious ethos to give preferential treatment to an employee or prospective employee on the ground of religion. Furthermore, it permits such an institution to take action where it is reasonably necessary to prevent employees from undermining the religious ethos of the institution. This section effectively permits institutions to discriminate against those individuals whose lifestyle is not perceived as conforming to the religious ethos e.g. sexual orientation, family status etc. This piece of legislation is justified on the basis that those religious institutions should be free to uphold their strong religious values and tenets.
Calls for Change
In recent months there has been a call for section 37 to be amended. Notably, the then Minister for Education Ruairí Quinn and Minister for Justice Frances Fitzgerald are jointly forwarding a proposal to Cabinet for an amendment to this section which would effectively remove this protection from such religious institutions. This proposal comes fast on the heels of the Statement of the Irish Human Rights Commission and Equality Authority on 14 July 2014 which states “[w]e further recommend that section 37 of the Employment Equality Acts be amended to protect the rights of access to employment and promotion in the fields of education and health”.
Religious Institutions
Whilst this is currently only at proposal stage, all such employers are strongly encouraged to take cognisance of this now and be mindful of current and future recruitment policies. Furthermore, this change in law will have a major impact on how such institutions may tackle employee related issues which are deemed contrary to the institutions religious values. No doubt, many readers will be aware of some high profile cases in the USA over the last year where homosexual workers were dismissed from religious institutions on foot of their sexual orientation. As it stands in Ireland, such dismissals would likely be deemed fair on foot of s.37 but should the amendment come into effect then such a dismissal would not be deemed fair.
Previous Irish Cases
Whilst the majority of media attention on this subject has focused on the impact for the LGBT community, any such amendment will have more wide-reaching implications. A perfect example is the High Court decision Flynn -v- Power [1985] IR 648, where the High Court held that a teacher could be lawfully dismissed by a denominational school on the basis that she had an affair with a married man. Should section 37 be amended then such a dismissal would also likely be deemed unfair and discriminatory.
Conclusion If this amendment is introduced then there will no doubt be shockwaves across any religious institution in the health and educational sectors. There is likely to be strong opposition to any such change on the basis that these employers ought to be able to uphold their strongly held religious values. Similarly, there is likely to be a swell of support for this amendment from a number of communities and employee bodies. No doubt there will be some interesting debates in the Dáil in the coming months.
