Ms Marguerite Bolger:

I thank the committee for having invited us to give it what I hope will be the benefit of our views on the Banded Hours Contract Bill. By way of filling in the committee very briefly, the Employment Bar Association, of which Ms Maguire is the chairperson and I am a former chairperson, is a specialised association of barristers - junior and senior counsel - who act for employers and employees. It is a significant point to make that we act across the board. We act for the multinationals, the unions, the big employers and the little employees. I would go so far as to say this gives us a unique perspective in that we can, I hope, identify the legal issues from both sides of the employment contract - from the employer's point of view and the employee's point of view.

In this context, we strongly welcome what the Bill seeks to do and very much endorse and support any attempts to increase protection for vulnerable, atypical employees. However, we wish to register some fairly serious concerns we have from the legal point of view in respect of how the Bill, as currently drafted, seeks to achieve what I think is its overall aim. I looked at the sponsoring Deputy's presentation to the committee, and it seemed that what the Bill seeks to do is very positive, that is, to give people the right to the hours they actually work so that their contractual entitlements reflect their reality. We very much support this. We question whether it is appropriate to do this by way of further legislation, therefore adding to the complexity of an already complex system, and we certainly question some of the specific parts of the Bill, as currently drafted. We have set this out in some detail in our submission, but I wish to highlight two points in particular.

The first is the essential entitlement the Bill seeks to confer, that is, the right to the increased hours. This is fine, but the entitlement should reflect the hours actually worked. This seemed to be the tone of the presentation made by the sponsoring Deputy. However, section 3, as currently drafted, states that there is an entitlement to hours "where the band requested exceeds the hours average worked". The word "exceeds", rather than "reflects", is used. This quite simply gives employees the right to look for hours over and above those they have been working. It would therefore be useful to consider redrafting this, perhaps using the word "reflects", a word that has been used predominantly in previous submissions by the Bill's sponsoring Deputy.

The other area we urge the committee to re-examine is the test that has been developed which can allow an employer to refuse a request. Interestingly, the Long Title of the Bill refers to "refusal on objectively justified grounds", which is a great test. Objective justification was originally developed around equality law and has been used in Irish legislation such as the Protection of Employees (Fixed-Term Work) Act and the Protection of Employees (Part-Time Work) Act. It comes with a huge analysis by the European Court of Justice in Luxembourg, the High Court and workplace adjudication officers. Essentially, it is a fairly simple three-pronged test.

An employer must identify a legitimate aim or real need, after which the employer must show that what it is doing to achieve this aim or need is necessary and appropriate. The three prongs are, therefore, real need, necessity and appropriateness. This is a good test which strikes a fair balance between the interests of employers and the rights of employees. Although it is set out in the Long Title to the Bill, it is not the test that exists in the Bill. Perhaps this is an oversight. Instead, the Bill applies a very onerous test whereby employers must show they are in severe financial difficulties. On any analysis, this is a hard test for an employer to satisfy.

The reason we urge caution does not only relate to the balance perhaps being disproportionately drawn in favour of the employee rather than the employer. To some extent, this is a policy issue rather than a legal issue. However, a major legal issue arising is that this is an onerous test which imposes such a disproportionate burden on an employer that there is a real risk that the legislation will be struck down as unconstitutional. This is not just an idle theoretical possibility. The Employment Equality Bill 1996 was struck down by the Supreme Court as unconstitutional for a similar reason, namely, that it imposed a disproportionate burden on employers in respect of reasonable accommodation in the area of disability discrimination. That Bill provided that an employer had to provide reasonable accommodation unless it could be shown that it caused the employer undue hardship. The undue hardship test in the 1996 legislation was similar to the test provided for in the Banded Hours Contract Bill and the test provided for in the former was struck down as unconstitutional. We urge the committee to reconsider the test formulated in the relevant section and examine again the objective justification test as the latter is, I believe, what the sponsor was trying to achieve in the Long Title.

The final point to which I draw members' attention relates to remedy. It is a classic legal position that the law can confer all the rights in the world but these rights are only as good as the remedy that comes with them. For a right to be real and effective, it must have a real and effective remedy. The only remedy the Bill presents at the moment is that relating to increased hours. There is nothing about compensation or unfair dismissal. A stark exclusion is the employee who no longer works for the employer. While the Bill covers formal employees, it does not afford them a remedy. It does not afford a remedy to someone who may have been fired for having raised his or her entitlements or may have left a job because increased hours were not provided. We suggest the committee consider expanding the remedies beyond simply conferring the hours by addressing issues such as compensation and unfair dismissal.

In that context, there is no provision for penalisation, which is a powerful tool in protecting employees' rights. Penalisation is where an employee has suffered some sort of detriment or has been badly treated because he or she asserted rights. A classic example, one which is highly contemporary, is whistleblowing. The Protected Disclosures Act 2014 does not give employees a right, as such, to be a whistleblower but simply protects the employee who is a whistleblower from penalisation. If one suffers a detriment as a result of having blown the whistle, this gives rise to a cause of action. Here, we would suggest members consider introducing penalisation in order that the person who is, in effect, punished for asserting a right to increased hours has a protection and cause of action under the legislation.

We also suggest that introducing new legislation, thereby adding to what is already a very complicated and extensive body of employment legislation, is not necessarily the best and most efficient way of dealing with what the committee is trying to achieve. We suggest that the committee consider amending existing legislation rather than introducing new legislation. Ms Maguire will address what it could consider in amending existing legislation.