37.—(1) F69[Subject to subsections (1A) and (1B), 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.

F70[(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—

(a) that treatment does not constitute discrimination on any of the other discriminatory grounds, and

(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.]

F70[(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—

(a) the action is objectively justified by the institution’s aim of preventing the undermining of the religious ethos of the institution, and

(b) the means of achieving that aim are appropriate and necessary.]

F70[(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—

(a) rationally and strictly related to the institution’s religious ethos,

(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

(c) proportionate to the conduct of the employee or prospective employee, as the case may be, having due regard to—

(i) any other action the employer may take in the circumstances,

(ii) the consequences of that action for that employee or prospective employee,

(iii) the employee’s or prospective employee’s right to privacy, and

(iv) the actual damage caused to the religious ethos of the institution by the conduct of that employee or prospective employee.]

F71[(2) For the purposes of this Part a difference of treatment which is based on a characteristic related to any of the discriminatory grounds (except the gender ground) shall not constitute discrimination where, by reason of the particular occupational activities concerned or of the context in which they are carried out—

(a) the characteristic constitutes a genuine and determining occupational requirement, and

(b) the objective is legitimate and the requirement proportionate.

(3) It is an occupational requirement for employment in the Garda Síochána, prison service or any emergency service that persons employed therein are fully competent and available to undertake, and fully capable of undertaking, the range of functions that they may be called upon to perform so that the operational capacity of the Garda Síochána or the service concerned may be preserved.

(4) If—

(a) the Minister is of opinion that the age profile of members of the Garda Síochána, prison service or any emergency service is such that its operational capacity is or is likely to be adversely affected, and

(b) he or she by order so declares,

the age ground shall not apply in relation to such competitions for recruitment to that service as are specified in the order.

(5) In relation to discrimination on the age ground or disability ground, nothing in this Part or Part II applies in relation to employment in the Defence Forces.

(6) In subsection (4)(a) the reference to the Minister, in relation to an emergency service, is a reference to the Minister of the Government with official functions in regard to that service.]