In July 1997 the EU Commission issued a proposal for a Council Directive relating to part-time employees.
Fiona Thornton of A & L Goodbody's Commercial Department examines the potential repercussions for Irish employers.
In July 1997 the EU Commission issued a proposal for a Council Directive relating to part-time employees. It aims to outlaw employment discrimination against part-timer workers. Irish part-time employees do not have this protection. Therefore, this move has implications for Ireland. Previous attempts by the Commission to introduce similar rights for part-timers have failed.
The new attempt takes place under the auspices of the Social Chapter and is ground-breaking. There may be legal difficulties in going this route. The route chosen by the Commission involved consultation with some EU Social Partners. This resulted in a framework agreement concluded by three umbrella EU unions representing public sector employees, private sector employees and employers.
It sets out the rights to be given part-time workers. Its terms are vague and this could lead to difficulties of interpretation on an EU scale, not only in Ireland for example, It covers "employment conditions". It is not clear which rights are covered. Pensions would be covered if the right to pay is covered. This seems likely.
Existing EU employment equality law is sex based. Part-timers only have protection if discriminated against on grounds of their sex. Under these equality laws, pay encompasses pensions. However, the Social Chapter recognises a separate equal pay structure. This may create a separate set of rights in itself. If so, it would make equality law more complex than ever.
How pensions will be affected, in practice, will depend on exactly how the Framework Agreement is adopted in the general context of employment equality laws in Ireland. Of particular significance is that it would allow Ireland to introduce the concept of a notional comparator. Currently, in order to prove sex-based discrimination, a claimant must prove that a colleague of the claimant who is of the opposite sex is doing like or similar work (depending on the claim). If there is no such person employed, no claim will lie. To date Irish law has not permitted the concept of a " notional comparator" to be used when bringing sex based claims.
Exactly what would be the notional comparator is difficult to say. Possibly the notional employee would be hypothetically employed on a full-time basis on employment terms which are the industry norm in that particular employment.
Since pensions are provided voluntarily by employers, if a notional comparator were introduced in the future this might mean that, indirectly, employers would have to provide pensions as of right.
Whatever form the eventual Directive takes the message from Europe is clear: if existing pension schemes do not admit part-timers, in the future they will be required to.
Existing schemes will need to be adequately flexible to facilitate chunks of full-time work followed by chucks of part-time work and vice versa. This is to accommodate flexible work practices which are also envisaged by the Framework Agreement.
Ireland should introduce employment rights (including pension rights) for part-timers in advance of being required to by Europe. The Employment Equality Bill 1996 is currently being revised as parts were found to be unconstitutional by the Supreme Court earlier this year. These rights could be included in the Employment Equality Bill when reissued. In that way Ireland would have the opportunity to enact such laws on its own terms.
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