The Equality Authority is seeking Submissions on the Proposed amendment to Section 37 of the Employment Equality Act 1998-2011.
The Equality Authority has given some background to the Proposed Amendment:-
You may also be aware that The Programme for Government stated: “People of non-faith or minority religious backgrounds and publicly identified LGBT people should not be deterred from training or taking up employment as teachers in the State”.
The s37 provision may also have an impact in institutions that have a religious ethos such as those in the health sector.
The Minister for Justice and Equality has decided to merge the Equality Authority with the Irish Human Rights Commission. His letter of appointment to the members of the Irish Human Rights and Equality Commission (designate) (the “Commission designate”) sets out that he wanted to address the amendment of s37 of the Employment Equality Acts 1998 – 2011 with the Commission members as a priority matter.
The Commission designate has agreed to review the issue and the Executive of the Equality Authority are leading this project. The Irish Human Rights Commission (IHRC) has also agreed to assist in this project. For further information please contact Ms. Nuala Cuddy on 0505-24126 or 1890 245 545.”
Submissions are welcome in electronic format to firstname.lastname@example.org and should be no more than 2,000 words in length. The deadline is Wednesday November 13th 2013.
In 2012 the National Secular Society along with Atheist Ireland made a Submission to the EU in support of the claim of Directive infringement by Ireland of EU Framework Directive 20007/78/EC.
The Submission was written by – Dr. Ronan McCrea, Barrister at Law (Ireland)(N.P.), Barrister (England and Wales) (N.P.), Lecturer, Faculty of Laws, University College London.
We are publishing the Document below in order to assist anyone who wishes to make a Submission to the Equality Authority in relation to Section 37 of the Employment Act. Submissions do not need to be long and detailed but you can recommend changing this piece of legislation. Atheist Ireland will be making a Submission and we are already working on that.
Submission from National Secular Society and Atheist Ireland to the EU.
Religious Exemptions in Irish Law: Section 37 of the Employment Equality Act and Directive 2000/78
Report for the National Secular Society
8 December 2012
The exemptions provided by Irish law for religious employers raise serious issues in relation to the duty of the Irish authorities to implement Directive 2000/78 for the following reasons. The exemptions provided by the Irish legislature in Sections 37(1) and (2) of the Employment Equality 1998 (as amended) fail to respect key features of the directive that have been repeatedly identified by the Commission and which violate the general principles of EU law.
The Irish legislation remains untested in litigation before the superior courts (High Court and Supreme Court). The absence of litigation cannot be taken as evidence that the law is operating satisfactorily. The vagueness of Irish law in this area coupled with the particular structure of the Irish education system, within which the vast majority of schools (including over 90% of primary schools) are under the control of religious bodies, means that it is impossible for individuals to test the legislation in the courts without risking losing almost all opportunities for employment within the sector. Indeed, the Irish Congress of Trade Unions has cited Section 37 as a major concern to its members and has called for the scope of the exemptions it provides to religious employers to be narrowed.
The Relevant Legislation:
Section 37 of the 1998 Act provides that:
“(1) 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 for the purposes of this Part or Part II if—
(a) it gives more favourable treatment, on the religion ground, to an employee or a prospective employee over that person where it is reasonable to do so in order to maintain the religious ethos of the institution, or
(b) it takes action which is reasonably necessary to prevent an employee or a prospective employee from undermining the religious ethos of the institution.”
There are several notable features of Section 37:
(a) Broad Scope: the exemptions apply not merely to religious institutions but also to “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”.
Thus, it potentially applies to occupations such as healthcare professional or teacher that are largely secular in nature.
(b) Selective Nature: Exemptions are provided only to religious employers and not to employers with non-confessional beliefs and philosophies. This is despite the fact that the exemptions permitted by Directive are provided to organisations based “on religion or belief” (emphasis added). The European Court of Human Rights has consistently ruled that the protection of freedom of religion provided by Article 9 (and now by Article 10 of the Charter of Fundamental Rights of the European Union) applies equally to those with non-religious convictions. The selective nature of this exemption also violates the spirit of Article 17(2) of the Treaty on European Union which states that “The Union equally respects the status under national law of philosophical and non-confessional organisations”.
(c) Failure to include Genuine Occupational Requirement or Proportionality Tests: Section 37 allows more favourable treatment on the religion ground where it is “reasonable to do so in order to maintain the religious ethos of the institution” or where it takes action “reasonably necessary to prevent an employee from undermining the ethos of the institution”. Neither of these exemptions is limited by a genuine occupational requirement test or by a proportionality test. In the Reasoned Opinion sent to the United Kingdom authorities in relation their implementation of Directive 2000/78, the Commission noted that under the relevant British legislation:
“an employer can apply a requirement related to sexual orientation in respect of employment for an organised religion in order to comply with the doctrines of the religion or so as to avoid conflicting with the strongly held religious convictions of a significant number of the religion’s followers.”
The Commission noted that:
“these provisions are based on Article 4(1) of the Directive, the general provision allowing differences of treatment where a particular characteristic is a genuine and determining occupation requirement of the job in question.”
It found that the British legislation failed to fulfil the United Kingdom’s obligations under the Directive as Article 4(1):
“contains a strict test which must be satisfied if a difference of treatment is to be considered non-discriminatory: there must be a genuine and determining occupational requirement, the objective must be legitimate and the requirement proportionate.”
As these elements were absent from the British legislation, the Commission concluded that there a breach of EU law had taken place.
Like the British legislation, Section 37 of the Employment Equality Act lacks both proportionality and genuine occupational requirement tests and is accordingly overbroad. The sole limiting factor under Section 37 is the requirement that the more favourable treatment be “reasonable to maintain the ethos of the institution” or “reasonably necessary to prevent an employee […] from undermining the ethos of the institution”. This does not amount to a satisfactory balancing of the rights of employees and employers.
The legislation does not mention the need to balance the need to prevent the undermining of the ethos of an institution with the right of an employee to protection of their rights to privacy, free expression, equal treatment and dignity, all of which are protected by the Union’s Charter of Fundamental Rights. An action may be regarded as reasonably necessary to prevent the undermining of the ethos of an institution while involving a disproportionate restriction of, for example, an employee’s right to privacy. For example, teacher in a small town who lives with a same-sex partner could be seen by a religious employer as undermining the ethos of his or her employer and could be subject to the kind of intrusive inquiry into his or her private life found unacceptable by the Court of Human Rights in Smith and Grady v United Kingdom.
(c) Limited Opportunities for Employment Elsewhere
The dominance of religious employers within the Irish education system makes the failure of the legislature to include clear limitations based on proportionality and genuine occupational requirement tests, particularly grave. Teachers whose employment is terminated on grounds that such an action is necessary to prevent the undermining of a school’s ethos do not have available to them significant opportunities for employment in non-religious schools. In 2010, 91.1% of primary schools were under the control of the Catholic Church. Only 2.3% were non-religious schools.
In Schüth v. Germany the European Court of Human Rights found a violation of the Article 8 (ECHR) rights of a church organist who was removed from his post on the basis that he had engaged in an extra-marital relationship. The Court found a violation on the basis that the Germany courts had failed to adequately balance his right to privacy against the right of his employer to institutional religious freedom. In particular, the fact that he would have great difficulty in finding alternative employment meant that there had been a failure to respect his Convention rights.
Section 37, through its failure to provide that employers may only discriminate against employees where this is justified by a genuine occupational requirement limitation and is proportionate, fails to fulfil the obligations set down by the Directive. It opens the possibility that employers will be entitled, under Irish law, to interfere with the privacy rights of employees in a manner that would violate Article 8 of the ECHR, particularly given the near impossibility of obtaining employment in non-religious schools for teachers whose identity or life-choices are incompatible with the teachings of the Catholic Church or other religious bodies.
(d) Failure to Provide Legal Certainty
National courts are, of course, under an obligation to interpret legislation so that it is compatible with EU law insofar as it is possible to do so. It is possible that the Irish Courts, in interpreting Section 37, may read in genuine occupational requirement and proportionality tests to the terms “reasonable” and “reasonably necessary”. However, this is not sufficient to discharge Ireland’s obligations under EU law. As the Commission stated in its Reasoned Opinion to the United Kingdom:
“the European Court of Justice has consistently held that the provisions of Directives must be implemented with sufficient clarity and precision to satisfy the requirements of legal certainty (see in particular cases 29/84 Commission v Germany  ECR 1661 paragraph 23, C-159/99 Commission v Italy  ECR 1-3541 paragraph 24, case C-365/93 Commission v Greece  ECR 1-499, paragraph 9; and C-144199 and case Commission v The Netherlands,  ECR 1-3541, paragraphs 17 and 21).”
As Section 37 currently stands, employees in Ireland who work in institutions that have a religious ethos cannot be sufficiently certain that they will be protected from less favourable treatment (including termination of employment) only when such treatment is justified by a genuine occupational requirement and/or is proportionate.
In the context of an education system where falling foul of the ethos requirements of an employer may result in an inability to work in the vast majority of schools, this uncertainty represents a violation of the requirements of the Directive and of the right to privacy under the EU Charter of Fundamental Rights and the ECHR.
The potentially dire consequences of a failed legal challenge to Section 37 for an employee of a religious school means that those whose rights are affected by this legislation are understandably unwilling to take the risk of a litigating on the basis a hope that the Irish courts may read in limitations on the right to discriminate that do not appear in the text of the legislation. As the Irish Congress of Trade Unions states, section 37 “is viewed by many workers as potentially threatening in view of their lifestyle or living circumstances”.
For the above reasons, as it stands, Irish legislation appears to be in serious breach of the obligations laid down by Directive 2000/78.
Dr. Ronan McCrea
Barrister at Law (Ireland)(N.P.), Barrister (England and Wales) (N.P.), Lecturer, Faculty of Laws, University College London.
 Directive 200/78 Article 4(2).
 See Kokkinakis v Greece 17 EHRR 397 para. 31 and Arrowsmith v United Kingdom No. 7050/75, 19 DR 5 (1978).
 Treaty on European Union, Article 17(2).
 Infringement No. 2006/2450. Reasoned Opinion, November 2009.
 Regulation 7(3) of the Employment Equality (Sexual Orientation) Regulations 2003.
 (1999) 29 EHRR 493.
 Application no. 1620/03, 23 September 2010.
Marleasing Case C-106/89  1 ECR 4135.
 Letter of the Irish Congress of Trade Unions to the Minister for Community, Equality and Gaeltacht Affairs, 9 April 2010. http://www.ictu.ie/download/pdf/mary_white_letter.pdf