Ms Marguerite Bolger:

It is always open to the Oireachtas to simply exclude an employer with fewer than a certain number of employees and such a provisions is not unheard of. I urge the committee to exercise some caution, however, because by excluding, for example, companies with fewer than five employees, the most vulnerable employees could lose out. While this approach is an option, I suggest it is not a particularly attractive one in terms of trying to maximise the protection available to the most vulnerable employees.

I would point to two things - first, the objective justification and, second, how a formula for working out the six month average hours would be developed. For example, in some of the submissions that have been made to the committee, reference was made to seasonal work and, perhaps, an uncharacteristic jump in overtime. They are certainly issues of which the committee should take account. This should apply only in genuine situations rather than, say, in the case of a person whose hours have increased because of a once-off or seasonal situation. The six months timeframe as a calculating point is, possibly, not a bad one but the committee could consider increasing it such that the person has to have developed a significant pattern of the increased hours.

Returning to the objective justification, taking the example of the corner shop and a person having a difficulty with working at 8 a.m. when then the legitimate aim of the employer is have the shop open at 8 a.m., the question in this regard would be whether it is necessary for the employee to be there and if it is appropriate to make him or her be there. It may be that if there are sufficient numbers of people in the shop at that time, it is not necessary for that particular employee to be there, but if there are only a small number of employees there, it may be appropriate. In a small employer situation the objective justification test could be a lot easier to satisfy because the legitimate aim of the employer is to run the business and that involves the business being open at 8 a.m., 8 p.m. and so on. The larger employer will be more challenged in proving that there is objective justification for refusing a request. In terms of the concerns of small business the committee can take the exclusionary approach which is easy in one way but would not satisfactorily deal with protecting employees or it could take the more sophisticated or nuanced approach of the objective justification test which should strike a fair balance between the rights of the employees and the needs of the employers and how those needs are particular, different or, perhaps, more challenging for the smaller employer.