THE Supreme Court yesterday ruled that while three parts of the Employment Equality Bill were unconstitutional, a section allowing religious institutions to discriminate to preserve their ethos was within the Constitution.
The Chief Justice, Mr Justice Hamilton, after reading the 106 page judgment which took over two hours, said that the President, Mrs Robinson, would be informed of the court's decision.
The purpose of the Bill is to outlaw discrimination in employment and promote equality between employed persons and the manner in which this is sought to be achieved is set out.
In the Bill, however, there are exceptions and employers are allowed to discriminate on certain grounds, including religion, age, disability, sexual propensity, marital status and age. Other sections deal with discriminatory offences and liability.
Sections dealing with disability, liability of employers, and one dealing with discriminatory offences were ruled repugnant to the Constitution by the five judge court.
However, the section of the Bill which allows employers in religious institutions, including educational or medical, to discriminate where it is reasonable to do so in order to maintain their ethos, was deemed constitutional.
In referring to the religious exceptions, the Chief Justice said that the Bill represented a reasonable balance between the principle of equality before the law, on the one hand, and the principle of the free profession and practice of religion on the other hand.
The use of the words "reasonable" and reasonably necessary in the sections implied that the test was to be an objective one and that the matter was to be resolved on a case to case basis.
It would appear that it was constitutionally permissible to make distinctions or discriminations on grounds of religious profession, belief or status in so far, but only in so far, as this may be necessary to give life and reality to the guarantee of the free profession and practice of religion contained in the Constitution.
The provisions of the Bill dealing with disability, despite their laudable intention, were repugnant, he said. It required that an employer make specified arrangements for a disabled person. It was submitted that employers were required to bear what could be significant costs involved in providing facilities for disabled employees without payment of compensation by the State and this constituted an unjust attack on their property rights.
The Chief Justice said the section attempted to transfer the cost of solving one of society's problems on to a particular group. It required the employers to bear the cost unless the cost gave rise to "undue hardship" and there was no provision to exempt small firms.
Another section declared unconstitutional was that of "vicarious liability" where an employer was deemed to be liable for any discriminatory offences carried out by an employee.
The judge said the court concluded that to render an employer liable to potentially severe criminal sanctions in circumstances which were so unjust, irrational and inappropriate would make any purported trial of such a person not one held in due course of law.
The third unconstitutional section created the offences of obstructing or impeding the Labour Court, the Equality Director or an equality officer, or failing to comply with their requirements, in this section, in any proceedings for an offence, a document purporting to be certified by the director or to be sealed with the seal of the Labour Court and relating to the offence shall be received as prima facie evidence.
The judge said that the use of such a certificate was so contrary to the concept of affording a person a trial in due course of law as to render it contrary to the Constitution.
The Supreme Court ruled that all other exceptions to nondiscrimination were constitutional.