Ms Marguerite Bolger:

We are suggesting the objective justification test, and in that regard we identified the Protection of Employees (Fixed Term Work) Act. The objective justification test was developed around indirect discrimination and inequality. The reason we identified the objective justification as it is presented in the aforementioned Act is because the fixed term employee is again an atypical, potentially vulnerable employee. The test in that regard is where an employee is asserting his or her right to a contract of indefinite duration, effectively to a permanent contract after four years of temporary employment. This can be resisted by an employer by reference to objective justification. It is the same test that is applied across the board in all sorts of situations and it requires the employer to identify a real need rather than what he or she desires in terms of business operation. This need is sometimes referred to as a legitimate aim.

The second question that arises is whether what the employer is trying to do in resisting the employee's rights is necessary and appropriate. This is what the Court of Justice terms a three pronged test: need, necessary and appropriate. We would suggest that it is a test that strikes the right balance, and even more so from a legal point of view, it is a test that has stood the test of time. There is plenty of analysis around it and it has borne up well in relation to indirect discrimination and fixed term work situations, both of which would be very active and meaningful entitlements for atypical vulnerable workers. As a test, it has shown itself capable of striking the right balance between protecting the rights and entitlements of vulnerable employees while at the same time taking account of the needs of employers. As pointed out by Deputy Niall Collins, the needs of the Coca-Cola type businesses are very different from the needs of the fewer than five employees corner shop.