UNDER the Employment Equality Bill 1996 an employer in a religious institution would no longer be entitled to discriminate on the basis of religion, as he would have to establish that it was reasonable to prefer somebody else, the Supreme Court was told yesterday.
On April 3rd, the President, Mrs Robinson, referred the Bill to the Supreme Court under Article 26 of the Constitution, for a decision on whether it was repugnant to the Constitution.
Ms Mary Finlay SC, for the Attorney General, said yesterday that section 37 of the Bill could not be construed as authorisation to discriminate. The section made it not unlawful under the Bill in very limited circumstances to prefer to give more favourable treatment to an employee where it was "reasonable".
The Chief Justice, Mr Justice Hamilton, asked who decided what was reasonable. Ms Finlay said if there was any dispute there were remedies.
She said that if a teacher, for instance, felt he or she had been discriminated against and challenged it under the Act, the first matter that would have to be decided was what was the ethos of the school. This would be determined on expert evidence.
The second question would be whether it was reasonable for the authorities of the school to determine if it was necessary to have a teacher of one particular faith in order to maintain the school's religious ethos.
The Chief Justice asked did not Section 37 permit discrimination on religious grounds. Ms Finlay said it did not. In her submission, the Bill was creating a statutory provision on private employers. At the moment, if a private employer wanted to discriminate on the basis of religion, there was nothing in Irish civil law to stop him.
If one came back and looked at an employee today and then after the Bill became law, there was no interference with their rights, including their right to work.
Religious institutions, schools, for instance, were entitled to say that they would only employ people of a certain religion. After the Bill was law, they would no longer be entitled to do that. The school was going to have to establish that it was reasonable to prefer somebody.
The Chief Justice said that the weakness in that submission was that when the Bill was passed, there would be a situation where ordinary employers were prohibited from discriminating on religious grounds but religious institutions were given permission to discriminate.
Ms Finlay said that was a different form of discrimination between employers.
The hearing will resume before the five judges next Tuesday.