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Amendment of section 37 of Act of 1998
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11. Section 37 of the Act of 1998 is amended—
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(a) in subsection (1), by the substitution of “Subject to subsections (1A) and (1B), a religious, educational or medical institution” for “A religious, educational or medical institution”, and
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(b) by the insertion of the following subsections after subsection (1):
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“(1A) Where an educational or medical institution referred to in subsection (1) is maintained, in whole or in part, by monies provided by the Oireachtas more favourable treatment on the religion ground referred to in paragraph (a) of that subsection shall be taken to be discrimination unless—
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(a) that treatment does not constitute discrimination on any of the other discriminatory grounds, and
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(b) by reason of the nature of the institution’s activities or the context in which the activities are being carried out, the religion or belief of the employee or prospective employee constitutes a genuine, legitimate and justified occupational requirement having regard to the institution’s ethos.
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(1B) Where an educational or medical institution referred to subsection (1) is maintained, in whole or in part, by monies provided by the Oireachtas, action of the type referred to in paragraph (b) of that subsection shall be taken to be discrimination unless by reason of the nature of the employment concerned or the context in which it is carried out—
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(a) the action is objectively justified by the institution’s aim of preventing the undermining of the religious ethos of the institution, and
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(b) the means of achieving that aim are appropriate and necessary.
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(1C) An action referred to in subsection (1B) shall not be objectively justified in accordance with paragraph (a) of that subsection, or appropriate and necessary in accordance with paragraph (b) of that subsection, unless the action of the institution is—
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(a) rationally and strictly related to the institution’s religious ethos,
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(b) a response to conduct of the employee or prospective employee undermining the religious ethos of the institution rather than a response to that employee’s, or prospective employee’s, gender, civil status, family status, sexual orientation, age, disability, race or membership of the Traveller community, and
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(c) proportionate to the conduct of the employee or prospective employee, as the case may be, having due regard to—
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(i) any other action the employer may take in the circumstances,
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(ii) the consequences of that action for that employee or prospective employee,
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(iii) the employee’s or prospective employee’s right to privacy, and
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(iv) the actual damage caused to the religious ethos of the institution by the conduct of that employee or prospective employee.”.
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