Employment Equality Act 1998 Section 37

Discuss church-state separation issues that are relevant in Ireland.
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Employment Equality Act 1998 Section 37

Post by tony » Wed Mar 30, 2011 11:06 pm

http://www.irishstatutebook.ie/1998/en/ ... c0037.html
37.—(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.
It would be great if the government removed this exemption. Is it reasonable that religious organisations should be entitled to discriminate like this?
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Re: Employment Equality Act 1998 Section 37

Post by Marks » Thu Mar 31, 2011 1:38 pm

I don’t think they are going to remove it any time soon. The problem is that the Irish Constitution permits discrimination on the grounds of religion.

In their recent submission to the UN under the Universal Periodic Review the Irish Human Rights Commission has called for a constitutional referendum on Article 40.1 (equality before the law) of the Irish Constitution (page 5 at para 11).

http://www.ihrc.ie/download/pdf/ihrc_re ... h_2011.pdf

The UN has already raised concern about Article 40.1 (equality and discrimination) of the Irish Constitution in 1999, 2002 and 2008:-

“16. The Committee regrets that the State party has not yet undertaken any measures with regard to the Committee's 1999 recommendation concerning the inconsistency of article 40.1 of the Constitution on equality before the law with the principle of non-discrimination as set out in articles 2 and 3 of the Covenant.”

Atheist Ireland also raises the issue of religious discrimination and equality before the law in our submissions to the UN. All we can do is push for the state to be found in breach of its international obligations in relation to discrimination on the ground of religion. AI has also referred to Article 40.1 in our recent Submission to the UN under the UPR :-

“2.1 Law: None of the UN treaties has been incorporated into Ireland’s domestic legal framework. Because of this, although equality is protected under Article 40.1 of the Irish Constitution, the Irish Courts can interpret this right narrowly and not consistently with the principle of non-discrimination as set out in UN treaties. The Irish State maintains that the rights afforded under the various UN Conventions are guaranteed under the Irish Constitution and the European Convention on Human Rights Act 2003. This is not the case. According to the Act every organ of the state must perform its functions in a manner compatible with the European Convention. However in order to seek an effective remedy under the Act, it is expected that a complainant should ask the courts to interpret statues in a Convention compliant manner and, if that was not possible, to make a declaration of incompatibility. A declaration of incompatibility is not obligatory on the State. There is no legal aid for these matters and the prohibitive cost of legal action against the state is a major deterrent and consequently there is no effective remedy.
Recommendation: Incorporate all UN Treaties into Irish law, and amend Article 40.1 of the Irish Constitution to reflect a more expansive interpretation of equality.”

The Irish State informs the UN that equality before the law and freedom from discrimination are protected under the European Convention on Human Rights Act 2003. They always fail to inform the UN that under the ACT schools are not considered ‘organs of the state’ within the meaning of that ACT. The Irish courts are not obliged to interpret ‘rights’ in a manner consistent with any judgment at the European Court of Human Rights in relation to education. We are left challenging laws in the courts which are simply a reflection of the discrimination that is permitted under the Irish Constitution. Even if it was possible to hold the state responsible in the courts there are issues with the incompatibility of the Irish Constitution and the European Convention. In the recent A,B,C case v Ireland at the European Court the court said that the rights guaranteed by the 2003 Act would not prevail over the provisions of the constitution and in any event a declaration of incompatibility would place no legal obligation on the state to amend domestic law.

I do not know how the European Convention on human rights Act 2003 can be even considered as an effective remedy against religious discrimination in schools when these schools are not ‘organs of the state’. Section 37 of the Equality Legislation is not confined to religious discrimination and covers aspects of teacher’s private life. This simply cannot be compatible with Article 8 of the European Convention which is the right to private and family life.

A worrying issue about the recent Education Forum that Ruairi Quinn has set up is that none of the organisations are ‘organs of the state’ they are all essentially private bodies as the state cedes control to the interests of patrons and boards of management. None of them will be pushing for state schools (organs of the state) and if we have not got state schools then we cannot hold the state responsible for failing to interpret rights in a manner consistent with the European Convention. As we have not been invited we cannot push for our human rights under Article 13 of the European Convention to an effective remedy and our human right under Article 14 to be free from religious discrimination.

“Article 13
Right to an effective remedy
Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.

Article 14
Prohibition of discrimination
The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

I notice that the Human Rights Commission has not been invited nor the Equality Authority and human rights are not in the Education Forum’s terms of reference. So when this Education Forum speaks of ‘rights’ and ‘diversity’ are we to take it that they are speaking about the so called ‘rights’ under that Irish Constitution which does not protect us from discrimination on the grounds of religion and does not protect teachers from discrimination on other grounds with regard to their private life.
Joined:Thu Jan 04, 2007 11:58 pm

Re: Employment Equality Act 1998 Section 37

Post by tony » Thu Apr 28, 2011 7:23 pm

Section 37 of Employment Equality Act was raised at the Teachers Union Conference yesterday.

Ruairi Quinn raised the issue of lesbian and gay teachers and the possible impact of equality legislation protections regarding religious ethos.

Before concluding I want to consider one further issue that I know is of concern to your members.It has no material cost implications and does not impact on the public finances but it does matter hugely to those concerned. I am referring to the anxieties of those members of the teaching profession who are concerned that the fact that they may be gay or lesbian could be held against them, either in an explicit or a more subtle manner, by the management of some schools. While the concern may in part derive from one possible interpretation of certain legal provisions I believe that the real challenge is to change attitudes. Therefore I am more than happy to have my Department work with your officials and the relevant education partners on developing codes of practice to address this issue.
The President of the TUI in her reply referred to the concerns of TUI members.
TUI is requesting you here today Minister to do something else for equality. It is time now for the government to repeal the draconian Section t37(1) of the Employment Equality Act 1998 which relates to religious schools and institutions
It allows them to discriminate against employees/potential employees on religious grounds to maintain their ethos or to prevent an individual from undermining that ethos TUI is of the view that aspects of a person’s private life might be interpreted as undermining the ethos of a particular institution. In particular, lesbian ,gay and transgender teachers are concerned that in religious run schools including Community & Comprehensive schools that being open about their sexual orientation may be prejudicial to their chances of employment and promotion and may lead to discrimination against them. This type of legislation has no place in a new Ireland please repeal this draconian section of the act.
Today’s Irish Times further reports that the Minister recognised that people may be prevented from entering into civil partnerships because of fear of losing their job or being discriminated against.
Mr Quinn said the programme for government agreed between Fine Gael and Labour did “talk about moving in this area”. While he could not anticipate what final action the Government would take on legislation, he did believe it was important to recognise that Ireland was now “more tolerant and inclusive”.

“There is an understandable concern that many people who might contemplate a civil partnership feel that perhaps they can’t do that because of the action that might be taken by patrons of some schools. But I would hope that as we move to complete the Republic and make it pluralist and open and inclusive, that those fears can be allayed.”
http://www.irishtimes.com/newspaper/ire ... 45462.html
http://www.irishtimes.com/newspaper/ire ... 21246.html
http://www.mamanpoulet.com/section-37-o ... #more-6135

The Irish Times - Thursday, April 28, 2011
'Draconian' law on hiring to be reviewed

TEACHERS' UNION OF IRELAND: A SPECIAL provision in equality legislation that allows religious-run schools to discriminate in favour of prospective employees on religious grounds will be examined by the Government, Minister for Education Ruairí Quinn said yesterday.

Teachers’ Union of Ireland president Bernie Ruane had raised the issue of section 37(1) of the Employment Equality Act with Mr Quinn.

In her reply to the Minister following his address to the union’s annual congress in Tralee, she said it was a “draconian” piece of legislation that “clearly discriminates against some of our citizens”.

Mr Quinn said the programme for government agreed between Fine Gael and Labour did “talk about moving in this area”. While he could not anticipate what final action the Government would take on legislation, he did believe it was important to recognise that Ireland was now “more tolerant and inclusive”.

“There is an understandable concern that many people who might contemplate a civil partnership feel that perhaps they can’t do that because of the action that might be taken by patrons of some schools. But I would hope that as we move to complete the Republic and make it pluralist and open and inclusive, that those fears can be allayed.”

However, Mr Quinn rejected calls by the union for the State to save €100 million of taxpayers’ money by ending the practice of paying the salaries of teachers in private, fee-paying schools and colleges and instead investing it in schools in disadvantaged areas.

The Irish Times - Wednesday, April 27, 2011
Call for repeal of law which favours religion
Barry Roche

DISCRIMINATION: THE GOVERNMENT was yesterday challenged by TUI president Bernie Ruane to immediately repeal a section of the Employment Equality Act which allows religious-run schools to give favourable treatment to prospective employees on religious grounds without being found to have discriminated.

Ms Ruane said she intended raising section 37(i) of the Employment Equality Act with Minister for Education Ruairí Quinn as the TUI considered it a “draconian” piece of legislation which “clearly discriminates against some of our citizens”.

“Many members view this as potentially threatening in view of their lifestyle or living circumstances – it is now time for this Government to make up its mind – either it thinks the citizens of this country should live in an equal, inclusive and just society or they should not,” she said.

Ms Ruane, in her first address as TUI president, raised the issue of teachers being forced to take a 20 per cent pay cut, which she said was being imposed on union members to repay the massive debts run up by developers. “Ordinary public service workers who pay taxes are being treated like criminals whilst bloated property developers and bankers who got this country into debt are treated like royalty,” she said.

She called on the Department of Finance to change the way it looks at education so that all spending in the sector, including salaries, is regarded as capital spending and investment in the future.

She said the union would prioritise the lifting of a moratorium on posts of responsibility, protection of pensions for retired members and protection for new members entering the profession.
Rock on Ruairi. Now make it happen!!
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Re: Employment Equality Act 1998 Section 37

Post by Marks » Thu Apr 28, 2011 9:40 pm

Atheist Ireland brought up this issue in our recent Submission to the UN under the Universal Periodic Review.

“28. Teacher Training.
There are five teacher-training colleges in Ireland and all of them are Christian. In these colleges all students have no choice but to learn and take exams in Christian doctrine in order to take up a position as a teacher. As 97% of the schools in the country are denominational, minorities simply have no choice but to attend one of the colleges if they wish to become a teacher. Section 37 of the Employment Equality Act , provides for an exemption from equality for religious, educational or medical institutions under the control of a religious body. The exemption permits a religious body to discriminate on grounds of religion regarding its employees and prospective employees. This legislation permits religious bodies to take any action which is “reasonably necessary” to prevent an employee from undermining its ethos. This part of the Act is wide-ranging and not limited to discrimination on the grounds of religion. This part of the Act can be applied to a teacher who does not conduct his/her private life in accordance with the teaching of a particular religion.

29. Recommendation.
Remove Section 37 of the Employment Equality Act and open up non-denominational teacher training colleges.”

There is an issue as well with Article 40.1 of the Irish Constitution. Article 40.1 is equality before the law; however the UN has raised concern with this Article and the principle of non-discrimination.

“16. The Committee regrets that the State party has not yet undertaken any measures with regard to the Committee's 1999 recommendation concerning the inconsistency of article 40.1 of the Constitution on equality before the law with the principle of non-discrimination as set out in articles 2 and 3 of the Covenant.”

This of course means that they believe that the Irish Constitution does not protect against discrimination. I have noticed that in their recent Submission to the UN under the Universal Periodic Review the Irish Human Rights Commission now recommends a Constitutional Referendum on Article 40.1 of the Irish Constitution. That seems to indicate that they have accepted that Article 40.1 does not protect against discrimination. They said:-

11. The IHRC recommends that a referendum be held to amend Article 40.1 of the
Constitution to guarantee equality to all and to proscribe discrimination (direct or
indirect) in any area of law on non-exhaustive grounds (such as race, sex, language or

Maybe Ruairi Quinn is paving the way for this to happen.
Joined:Wed Feb 07, 2007 11:28 pm

Re: Employment Equality Act 1998 Section 37

Post by lostexpectation » Sat Apr 30, 2011 3:47 am

RQ said he wouldn't change the legislation, he didn't think it was necessary to combat inequality, isn't the whole point of legislation?, code of practices these schools will draw up for themselves, yeah cos self regulation always works!
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Re: Employment Equality Act 1998 Section 37

Post by Marks » Sat Apr 30, 2011 10:54 am

[quote="lostexpectation"]RQ said he wouldn't change the legislation, he didn't think it was necessary to combat inequality, isn't the whole point of legislation?, code of practices these schools will draw up for themselves, yeah cos self regulation always works!

Well a code of practice is not going to do it. Nothing will change with that because as you say they will be self regulating. Is that not the problem ‘self regulation’!

In a circular letter from the Vatican in 2009 they stated the following:-

“6. Catholic schools are characterised by the institutional link they keep with the Church hierarchy, which guarantees that the instruction and education be grounded in the principles of the Catholic faith and imparted by teachers of right doctrine and probity of life (cf. c. 803 CIC; cc. 632 e 639 CCEO).

In 92% of the primary schools in Ireland a foreign state can dictate how teachers run their private lives. Overall 97% of schools are denominational. In other countries that fund religious schools they have a parallel system of non-denominational schools where the majority of students attend. No other state permits discrimination of this kind against teachers.

Under the patronage system schools are essentially private as the State cedes control to the interests of patron bodies and boards of management. In McGrath and O’Ruairc v Trustees of Maynooth College 1979 the courts found that the prohibition of discrimination under Article 44.2.3 of the Irish Constitution was confined to the State and did not cover institutions receiving public funding. Because denominational schools are private as the State has ceded control they can discriminate in order to uphold their ethos.

Before the Employment Equality Act there was the Unfair Dismissals Act 1977. In 1982 a case came before the courts with regard to a teacher who was dismissed because she was living with a married man (his wife had left him). This case is still on the statue books and no Code of Practice will change that. If they can fire a teacher for this then they certainly can fire any teacher who is in a same sex relationship.

I cannot provide a link so I will have to paste it. It is worth reading because it is quite unbelievable how we can call ourselves a Republic when this kind of discrimination can take place and the Constitution does not protect us from it.

“*No. D5310 of 1985*
*[8^th of March, 1985]*
*Status: Reported at [1985] IR 648*
*Costello J*.
There is a secondary convent school for girls situated at Rabercon, New Ross, County Wexford, managed and controlled by members of the order of nuns named as the second respondents in these proceedings. It has not been necessary to consider the details of the management structure of
the school or the persons in whom the school property legally vests and I will refer in this judgment to the “respondents” as meaning both the order and its members (the school principals for the time being and the school manager) who were directly concerned in the events which have given rise to these proceedings. The appellant, who is now aged 30 years, was employed as a teacher in the respondents’ school. On the 22nd August, 1982, a letter was written to her by the school manager terminating her position in the school as from the 30th November, 1982.

On the 4th March, 1983, she gave notice of appeal to the Employment Appeals Tribunal under the Unfair Dismissals Act, 1977, claiming (i) that her dismissal was unfair and (ii) her reinstate­ment in the school.
The Tribunal’s decision of the 3rd February, 1984, was that the dismissal was not unfair. From this decision the appellant unsuccess­fully appealed to the Circuit Court. From the decision of the Circuit Court an appeal has been taken to this Court. The Act confers no express appellate jurisdiction on the High Court, but the respondents have accepted the validity of an earlier High Court decision on the point and agree that an appeal lies. Accordingly I have heard this
matter as an ordinary Circuit appeal and will determine it on the evidence adduced at the hearing before me.

The basic relevant facts are not really in dispute. The appellant was first appointed to the school in a temporary capacity as a teacher of Irish and History. She commenced her duties in September, 1978. In April, 1979, she was offered and accepted a permanent appointment. The appointment was made in a very informal manner and because of a dispute which then existed no written contract was entered into. There were some complaints about the appellant’s punctuality in the academic year 1979/80 but these were of no great significance and her professional work was found to be of a high standard. But in the academic year 1980/81 the situation deteriorated. Not only were there complaints relating to the quality of her work but, of much more importance, the principal learnt from formal complaints by parents that an association between the appellant and a married man (whose wife had recently left him and who owned a licensed premises in the town) had developed. The principal is a very experienced teacher and administrator and a very balanced and fair-minded person. She would not have taken the steps which she did unless satisfied that what she was told was not mere idle gossip. The matter, in her judgment, was not a trivial one, and she considered that a situation existed which in the light of her responsibilities as she saw them she could not ignore. On the 13th August, 1981, she asked the appellant to come to see her. She informed her that the interview must be regarded as an official one, and she then told her that she was aware that the appellant was having an association with a married man, that this had been the cause of grave disquiet amongst many parents and that unless a remarkable improvement in the unhappy situation took place, the appel­lant’s contract would be terminated at the end of the school year, 1981/82. The meeting was a very courteous one on both sides. The appellant did not for a moment deny that she was having an association with a married man but she indicated that she regarded this as her own affair and of no concern either to the parents or the school authorities. The principal agreed in evidence that apart from referring in their first interview to the fact that the school was a Roman Catholic school she had made no reference to the appellant’s private life before this interview. But she knew that the appellant had been brought up in the Roman Catholic faith and in tier view she must have been aware of her obligations to the school and so she considered herself justified in imposing on the appellant the requirements which she did.

A new principal took over in September, 1981, but the appellant was left in no doubt that the position remained unchanged. The new principal interviewed her and asked her to confirm as correct a written record of the August meeting. The appellant stated that she had received advice that she should sign nothing, but verbally confirmed the accuracy of what was read over to her. She was told that the new principal would keep a file on the situation and so it must have been perfectly clear to her that, whether rightly or wrongly, the respondents would terminate her contract if she did not terminate the association to which they objected. She chose not to do so. Indeed a new development in it occurred in the following November when the appellant moved into the dwelling accommodation attached to the licensed premises where her friend lived with his three young children and has openly lived with him there since.

In the months following their first interview the new principal had occasion formally to draw the appellant’s attention to her non-attendance at classes and her failure to give notice of inability to attend. It is unnecessary for me to detail these complaints here. Of immediate relevance to the issues in this case is an interview which took place on the 15th March, 1982, at which the appellant was asked whether it was true that she was pregnant. She emphatically denied that this was the case, whilst freely admitting that the relationship which had been referred to the previous year was still continuing. But she was very troubled about the situation, and she explained how torn and wrecked she felt and that she was contemplating leaving the town altogether. She asked the principal to pray for her. On the 2nd April the principal again referred to the parents’ concern at the fact that they believed that the appellant was pregnant. She again denied the suggestion. but said that she was going home for the week-end to have a long think about her position. On the 20th April, in a most distressing and emotional interview she finally admitted that she was pregnant. She
explained that she thought her baby was due in July, and that she was thinking of going to France or England for the birth. The principal offered to help in any way she could, urging her not to go to France and offering to contact her brother (a priest in London) who might be able to help. This the principal did, and later in the week told the appellant that arrangements could be made to look after her and her baby in London and that she could stay in Dublin in (the principal’s) mother’s house on the way to the airport. In case this narrative might suggest otherwise, I should make it clear that the principal was acting out of compassion and sympathy for the appellant; and had no ulterior motive; neither she nor her counsel have suggested otherwise in this Court. She wanted to be of practical assistance and pressed the appellant to obtain medical help immediately and informed her of her rights to maternity leave.

The contract of employment was made on behalf of the school authorities by the school manager, and on the 29th April a meeting between the school manager and the appellant took place. It began by the appellant asking her “are you going to dismiss me?”, but she was told that the manager had come to discuss the situation with the appellant. It was obvious that the appellant was under great strain and no final resolution of the situation then occurred. The manager explained the religious nature of the school, referred to the rights of the parents of children at the school and the concern expressed by them at the situation, making it clear that if the appellant did not change what she termed her “life-style” that her position in the school would be untenable. For her part, the appellant quite frankly admitted that she was living with a married man, that she loved him and that she would not leave him.

The day after this interview the appellant called on the principal and told her that she had decided to have her baby in London and did not convey her change of mind in this connection until early in June. The principal received a telephone call on the 9th June informing her that the baby had been born the previous day. On the 6th August the appellant was told that if she did not resign that she would have to be dismissed. As she did not do so, the manager wrote to her on the 22nd August. It is admitted that this letter accurately sets out what happened at the interview of the 6th August between the manager and the appellant. In addition it explains why the respondents dismissed the appellant. I should refer to it in some detail.

Having referred to the meeting and expressed her thanks for the appellant’s willingness in coming to see her and her view that as school manager she was required to give “primary consideration to the interests of our pupils” the manager wrote:—

“During our discussion of the 6th August, 1982,

1. I reminded you of our meeting on the 29th April last when I informed you (inter alia) of complaints received from parents re­garding your life-style.

2. I then informed you that after careful consideration and in the context of my duty as manager I could not allow you to continue teaching in the school, because of your open rejection of the norms and behaviour and the ideals which our school exists to promote.

3. I reminded you of the scandal already caused and of our obligations to our pupils and to their parents.

4. Recognising that you viewed the matter from a different standpoint I suggested that it would be in your best interests to offer your resignation.

5. 1 strongly recommended that you consider very carefully all that had been said and I suggested that you seek such advice as you thought fit.

6. I stressed. once again, my desire to act with compassion. For this reason I offered to give you. if YOU did resign, a sum of money which would equate to three months’ remuneration. in lieu of notice, although making it clear at the same time that we were under no obligation to do so.

7. Finally, I made it clear that if having given the matter consideration you were not prepared to resign then I would have no alternative but to dismiss you.

8. You agreed to think the matter over and let me know your decision by Monday 16th August, 1982.”

Having noted her decision not to resign, and having referred to her conduct as being “fundamentally inconsistent” with her position as a teacher in the school the letter terminated the appellant’s employment with effect from the 30th November following. A cheque for £2,026 was enclosed with it and it contained a request that “in the interests of the pupils” the appellant would not attend school when it opened in early September. On the 29th August the appellant told the principal
that on the advice of her solicitor she would contest the manager’s decision and on the 28th February following, notice of claim under the provisions of the Unfair Dismissals Act, 1977, was served.

I can briefly outline the statutory provisions under which this claim is brought.

The Act of 1977 contains a new and self-contained code of rights and remedies in cases in which an employee to which the Act applies is “unfairly dismissed”, as defined. When an employer terminates a contract of employ­ment this is deemed to be a “dismissal” (s. 1), and every dismissal is deemed to be unfair unless “having regard to all the circumstances there were substantial grounds justifying the dismissal”
(s. 6, sub-s. 1). The main and substantial issue in this case is whether in all the circumstances it can be said that the respondents had substantial grounds for terminating the appellant’s employment in their school. But this is not the only one. The appellant relies on a provision of the Act by which a dismissal of an employee shall be deemed to be unfair if it results wholly or mainly from the pregnancy of the employee or matters connected therewith (s. 6, sub-s. 2 (f)) and before going any further I will deal with that point now. It seems to me to be perfectly clear that in this case the appellant’s dismissal did not “result” from her pregnancy or matters connected with it and that the sub-section to which I have referred does not assist her case. It resulted from the appellant’s refusal to terminate a relationship of which the respondents had complained long before the fact of her pregnancy was known to them. No doubt the pregnancy confirmed (if a confirmation was needed) the nature of the relationship, but the warning of dismissal had been given before such confirmation had been obtained and had it continued, dismissal would have occurred in any event.

On the main issue I was referred by counsel to /Spiller /v. /Wallis Ltd. /(1975) IRLR 362; /Cassidy /v. /Goodman Ltd. /(1975) IRLR 86; /Whitlow/v. /Alkanet Construction Ltd. /(1975) IRLR 321; /Treganowan /v. /RobertKnee &Co. Ltd. /(1975) IRLR 247; /Nottinghamshire Co. Co. /v. /Bowly
/(1978) IRLR 252; /Newman /v. /Alarmco Ltd. /(1976) IRLR /45 /and /Wiseman /v. /Sa/ford CityCouncil /(1981) IRLR 202.

Whilst these cases are not directly in point they do assist by showing that under corresponding English legislation a rigid line is not drawn between private sexual behaviour outside the place of work (which can never be used to justify a dismissal), and conduct in the place of work (which may do so). One of the principles they illustrate (and indeed it is one accepted as applicable to the provisions of the 1977 Act) is that an employee’s conduct in sexual matters outside the place of employment may justify dismissal if it can be shown that it is capable of damaging the employer’s business.

Of more immediate relevance is a decision of the Supreme Court of Canada, in /Re Caldwell and Stuart /(1985) 15 D.L.R. (4th) 1 to which I was also referred. This was a case in which the contract of employment of a Roman Catholic teacher in a Roman Catholic school was not renewed after she had married a divorced man in a civil ceremony. She then instituted proceedings by means of a complaint to the British Columbia Board of Human Rights. At issue in the case was whether or not it was contrary to the Human Rights Code of British Columbia for a denominational school to refuse to employ a teacher who had personally disregarded the teaching of the Church. Section 8 of the Code (on which she relied) deals with equality of opportunity with respect to employment and freedom from discrimination and the case turned on an interpretation of that section. It is obviously different to the provisions of the 1977 Act which falls for consideration in the present case, but some of the observations in the judgment of the Supreme Court are relevant as they deal with the reasonableness of the requirement that Roman Catholic teachers should conform to the religious tenets taught in a Roman Catholic school and to the difference between a secular and a religious school in such matters. In this connection it was pointed out that the test was this: “Is the requirement of religious conform­ance by Roman Catholic teachers, objectively viewed, reasonably necessary to assure the accomplishment of the objectives of the Church in operating a Roman Catholic school with its distinct characteristics for the purposes of providing a Roman Catholic education for its students?” In answering this question in the affirmative McIntyre J., in
delivering the judgment of the Court said at p. 18:—

“The board /(that, is the Board of Inquiry under the Human Rights Code) /found that the Roman Catholic school differed from the public school. This difference does not consist in the mere addition of religious training to the academic curriculum. The religious or doctrinal aspect of the school lies at its very heart and colours all its activities and programmes. The role of the teacher in this respect is fundamental to the whole effort of the school, as much in its spiritual nature as in the academic. It is my opinion that, objectively viewed, having in mind the special nature and objectives of the school, the requirement of religious conformance including the acceptance and
observance of the Church’s rules regarding marriage is reasonably necessary to assure the achieve­ment of the objects of the school.”

Holding that the requirement to conform was a reasonable one, that the qualification imposed for employment in the school was a /bona fide /one, the Supreme Court held that the Board had been correct in holding that no breach of the Code had been established.

I come now to consider whether, hearing in mind that the onus of proof is on the respondents, it can objectively be said that there were substantial grounds which justified the dismissal in all the
circumstances of this case.

The gravamen of the respondents’ complaint against the appellant is, in the words of the letter of the 6th August, 1982, that the appellant openly rejected the norms of behaviour and the ideals which the school existed to promote. The appellant has not contested, as a matter of
principle, the right of school authorities to dismiss a teacher who openly rejects its norms and ideals. Nor has she denied that she is living by a code of conduct which is different in important respects
from that which the school has been estab­lished to foster and instill in its pupils. Her claim is that her private life is her own affair and that there has been no “open” rejection by her of the school’s norms, as alleged.

In adjudicating on this dispute it is important to appreciate that two of the important circumstances in which the dismissal occurred are these. Firstly, the appellant was employed in a religious, not a lay, school and the evidence establishes that such a school has long established and well known aims and objectives as well as requirements for its lay staff which are different to those of a secular institution.
Secondly, the evidence establishes that the dismissal occurred not as a punishment for breach of a code of conduct taught in the school, but arising from an assessment made of the effect on the school and its pupils of a continued breach of that code by the appellant. In making their assessment the respondents were, it seems to me, entitled to take into account that the appellant’s association was carried on openly and publicly in a country town of quite a small population; that within a short period of time it would have been common knowledge in the town (a) that the appellant was associating on a regular basis with a member of the town’s business community whose wife had recently left him, (b) later, that she had commenced to live with him as man and wife, and (c) that she had a child by him. But what is more to the point, the respondents were entitled to conclude that these facts must have become known to many if not all the pupils in the school, and that they would regard her conduct as a rejection of the norms of behaviour and the ideals which the school was endeavouring to instill in and set for them. I do not think that the respondents over emphasised the power of example on the lives of the pupils in the school and they were entitled to conclude that the appellant’s conduct was capable of damaging their efforts to foster in their pupils norms of behaviour and religious tenets which the school had been established to promote. In these circumstances they had substantial grounds for dismissing her.

Finally, the appellant submitted that as there was no express term in her contract of employment bearing on her private life or requiring her adherence to a particular moral code and as none is to be implied, then the dismissal is unfair because she was under no contractual obligation to act as the respondents had required of her. The contract of employment in this case was a very informal one. But because of the view I take of the 1977 Act it is unnecessary for me to decide what, if any, implied terms it contained. Undoubtedly, in certain circumstances it could be unreasonable to dismiss an employee for conduct which is not prohibited by the terms of the contract of employment. But in considering a claim under the Act the test is: in all the circumstances were there substantial grounds to justify the dismissal? and not: was the conduct relied on to justify the dismissal prohibited by contract?
In reaching a conclusion on this issue the terms of an employee’s contract are part of, but only part of, the overall circumstances to be considered by the Court. In the present case, the appellant knew from her own upbringing and previous experience as a teacher the sort of school in which she sought employment, and should have been well aware of the obligations she would undertake by joining its staff. Even if the contract of employment was silent on the point, (a), she must have known that objection could be taken that her conduct violated her obligations to the school and, (b), she was in any event given an opportunity to alter it. It cannot therefore be said that in this case the absence of an express or implied contractual term relevant to the matters of complaint tainted with unfairness a dismissal which otherwise was justified.

I must therefore dismiss this appeal.
Joined:Thu Jan 04, 2007 11:58 pm

Re: Employment Equality Act 1998 Section 37

Post by tony » Sun Feb 19, 2012 2:12 pm

FF taking a stance like this. Who would've thought?
http://www.thejournal.ie/fianna-fail-pr ... 0-Feb2012/
Fianna Fáil proposes bill to protect rights of gay teachers

FIANNA FÁIL HAS called on the government to legislate for the protection of lesbian, gay, and bisexual teachers against discrimination by publishing details of a bill today.

The bill (which can be viewed here) makes amendments to the Employment Equality Act and would mean that schools would not be able to discriminate against teachers who are lesbian, gay, or bisexual.
http://www.imt.ie/news/medico-legal/201 ... ctors.html

Minister backs gay doctors

By Lloyd Mudiwa.
The Minister for Health has come out in support of the removal or amendment of Section 37 of the Employment Equality Act 1998, which Gay Doctors Ireland (GDI) claims allows religious hospitals and educational institutions to fire doctors based solely on their sexual orientation.
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Re: Employment Equality Act 1998 Section 37

Post by chemicals » Sun Feb 19, 2012 3:14 pm

And how many years were they in power and did f*ck all on this issue :?
typical FF
والقس هو مجنون
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Re: Employment Equality Act 1998 Section 37

Post by eoinyk1 » Wed May 16, 2012 9:54 pm

Fanatical altar boy Ronan Mullen has this to say about changing Section 37: "However, a church-run school must be able to protect its ethos in the case of a teacher who, for example, might tell a class that atheism is preferable to Christianity, religion is a waste of time, all of us are nothing more than bundles of atoms devoid of moral worth, the occult is a healthy spiritual community, there is no such thing as objective truth, the unborn child is nothing more than a parasite and can be aborted accordingly, marriage discriminates against polygamists’ partners or the State and not God is the ultimate arbiter of what is right and wrong. These values are not held universally, yet they are essential issues in a church-run school.”

He really is a waste of atoms.
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