Publications - Balancing Work and Family Life - Chapter 6

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Chapter 6 - Legal Perspectives

6.1 Important legal issues

In addition to a clear understanding of the changing policy contexts within which such measures are introduced, any responsible discussion of the potential development of flexible, family-friendly working arrangements must also take note of a number of important legal dimensions to this type of working arrangement. Such arrangements are not uncontroversial and an understanding of the legal implications of their wider promotion is essential. "A typical work is a new term used to describe the wide variety of employment arrangements ranging from the traditional forms of part-time and temporary work to newer forms such as zero-hours contracts, telework and fixed term/purpose contracts. Even though this term has gained acceptance at European level, it fails to capture the precarious nature of most of these employment arrangements and the extent to which they have become very typical for many occupational groups, in certain sectors and for many women with family responsibilities ... Trade unions are not opposed to atypical forms of work but are opposed to the exploitation and discrimination associated with them" (Irish Congress of Trade Unions (ICTU 1996, p.1).

It is also important to distinguish between the legal framework in the commercial and non-commercial sectors, since these can differ considerably. Later in this Chapter, the particular circumstances which apply in the non-commercial public service will be outlined, not least because these measures have predominated in that sector to date. However, the analysis will not of course be confined to the public service for at least two key reasons:

  • The increasing usage of non-permanent employment in the commercial public sector (e.g. usage of temporary contracts) requires a consideration of the private sector legal framework.
  • There are aspects of employment law, which span both sectors, which are of relevance to the debate on family friendly working arrangements.

Accordingly, the main areas of relevant employment law are considered in turn.

6.2 National employment legislation

Meenan (1994) points out that, up to the mid-1990s, the terms part-time employment, temporary employment, and short-term employment were not legal descriptions, and that recent legislative developments have resulted in increased protection for workers engaged in more flexible forms of employment. Most notably, the Workers Protection (Regular Part Time Employees) Act was introduced in 1994 with the objective of protecting the interests of part time workers, who were until then largely unprotected by employment law. As a consequence of this Act, the protection afforded by various employment statutes has been extended to cover part-time employees (see Butler, 1994). The Act reduces the number of hours worked per week to eight, which an employee is required to work in order to qualify for protection under the Unfair Dismissals Acts 1977 to 1993. In addition, Section 13 of the Unfair Dismissals (Amendment) Act 1993 extended effectively employment protection to agency workers.

Meenan (1994) also points out while improvements have occurred in relation to the recruitment and protection of part-time workers, there are still questions raised in relation to certain types of non-standard employment. For example, prior to 1993, temporary officers employed by Health Boards, such as nurses and doctors were excluded from the scope of the Unfair Dismissals Act, 1977, even where such officers had been employed as temporary officers for a number of years. However the Unfair Dismissals Act, 1993 makes provisions that temporary officers now fall within the scope of the dismissals legislation.

6.3 National equality legislation

Since the mid-1970s, a typical workers in both the public and private sectors have received a degree of protection from employment equality legislation. Given the concerns raised in the literature review regarding the potential for part-time workers to be exposed to discriminatory working practices, in addition to the expressed concerns of trades unions regarding atypical employment, it is important to review briefly some of the main provisions of past and present equality legislation to the particular concerns and circumstances of non-full-time workers.

Following Ireland's accession to the European Community in 1972, a number of major pieces of legislation have been enacted to facilitate greater gender equality of opportunity in the Irish workplace. These will now be considered, insofar as they have implications for those working in non full-time standard employment.

  • The Anti-Discrimination (Pay) Act 1974 provides the right for men and women to equal pay for like work or work of equal value. In the context of non-standard hours of employment, part-time workers are covered by this Act (see Higgins and Keher 1996). For example, an employee working part time should not be paid at a lower pro-rata rate than that of a full-time employee, where they are employed on 'like work'. A number of significant judgements by the European Court of Justice (ECJ) have also clarified the entitlements of part time workers in important areas such as pensions and salary increments.
  • The Employment Equality Act (1977) was of particular importance in the context of the development of flexible and innovative forms of employment. The 1977 Act outlawed both direct and indirect discrimination on the grounds of gender or marital status, in relation to many aspects of employment from the recruitment process, through working conditions to dismissal. In the context of the public sector, cases taken under the 1977 Act have tended to focus on discrimination in relation to promotional, seniority and related issues. In contrast, in the private sector, cases have tended to focus on recruitment issues.
  • In this regard, the detailed implications of a recent ECJ ruling (Gerster v Bayern Freistaat 1997) are likely to be very significant. Following this ruling part time workers must be treated similarly to full time staff when considered for promotion, unless objective criteria, unrelated to gender could be shown. This ruling will be particularly significant where seniority or service is a factor in consideration for promotion, for entry to promotion competitions, for assignment to higher duties, and for transfers. As Humphreys, Drew and Murphy 1999 have noted seniority continues to be a significant factor in promotion practices across the Civil Service
  • Finally, the Employment Equality Act 1998 replaces and significantly improves the earlier legislation. It also has a greatly extended remit to cover, not just discrimination on the grounds of gender and marital status, but also family status, sexual orientation, religious belief, age, disability, race and membership of the travelling community. The Equality Authority has responsibility for reviewing the Employment Equality Act (1998), the Adoptive Leave Act 1995, the Maternity Protection Act 1994 and the Pensions Act (1990).

6.4 Other relevant provisions

A number of other relevant legislative and administrative developments have implications for the wider development of family friendly working arrangements.

  • A Parental Leave Act, 1998 was introduced in response to the requirements of the EU Directive on Parental Leave (1996). This Act provides for the granting of unpaid leave for each parent for a period of up to 14 weeks, for each child under the age of five years, in order to take care of the child. The Act also provides for paid leave for urgent family reasons in cases of sickness or accident of a close relative that made the presence of the employee indispensable. This can be taken for a maximum of three days leave in any consecutive 12-month period or a maximum of five days in any period of 36 consecutive months. Concern has already been expressed, however, that the new Act may reinforce existing gender segregation in the labour market, since it is more likely that women rather than men will avail of such leave, which is unpaid in contrast to similar legal provisions in other European countries (see Institute of Personnel Development (IPD) News, 1998).
  • In addition, other recent developments in EU law have implications for the usage of non-standard forms of work. For example, the EU Directive on Part-Time Work establishes the principle of non-discrimination and provides that part-time workers cannot be treated in a less favourable manner than comparable full-time workers, unless different treatment can be justified on objective grounds. The Directive defines a part-time employee as someone with a contract or employment relationship whose normal hours of work, averaged over a period of up to a year, are less than the normal hours of comparable full-timers. Member States will still have discretion on the inclusion or otherwise of casual and temporary workers from any consequential legislation.
  • Finally, it must be recalled that the more effective reconciliation of work and family responsibilities is a key theme to be addressed by EU Member States in the development of their new national employment policies following the Amsterdam Treaty. Specifically, all Member States are committed to design, implement and promote family-friendly policies, including affordable, accessible and high-quality care services for children and other dependants, as well as parental and other leave schemes.

At national level, there have been a number of other developments which impact on non-standard forms of work and which cover both the private and public sector, which are worth noting briefly.

  • Since the initiation of the Organisation of Working Time Act (1997), the maximum average working week is 48 hours, but averaging may be balanced over a four, six or 12-month period. The Act also covers employee entitlements in relation to rest period for working periods. The Act has implications for employers who utilise overtime as a form of numerical flexibility to meet demand, as it places a limit on the hours, which may be worked by employees. The Act also provides for entitlements to annual holidays for full-time, part-time and casual workers.
  • All provisions of the Health, Safety and Welfare at Work Act (1989) apply to all employees, including home workers and those who work outside the conventional office. Under the provisions of the Act, both employers and employees have statutory obligations based on common law duties of care. The employer has an obligation to ensure insofar as is possible the safety, health and welfare of their employees and consequently, every place of work must have a safety statement. The need for such a guarantee extends to more innovative forms of working, such as home working. Thus in the case of home working, it is suggested that a risk assessment of the home workstation should be undertaken by the employer, in conjunction with the home worker (see Telework Report, 1999).

6.5 Public service framework

In the Civil Service, as in the wider public service as a whole, recruitment in the main has been, and continues to be, restricted to full-time career length established positions, although there is a recognition that 'the exigencies of today's working environment demand that a more flexible range of options such as recruitment on a temporary or part-time basis be available to management' (Delivering Better Government, 1996, p. 40). Currently, both recruitment and the terms and conditions for working arrangements are determined centrally in the Civil Service. Recruitment to permanent positions is undertaken by the Civil Service Commission on behalf of Departments/Offices under the provisions of the Civil Service Commissioners Act 1956 and the Civil Service Regulations Act, 1956 (see Humphreys, Fleming and O'Donnell 2000).

At the same time, there have been some changes to the legislative framework governing civil service employment, most notably the Public Service Management Act (1997), that amends certain provisions of the Ministers and Secretaries Act (1924). This Act introduces a degree of potential flexibility with regard to the management of individual Departments/Offices. It transfers responsibility for personnel matters, including appointment and dismissals from the Minister concerned to the Secretary General of each Department. The extent to which such powers will be exercised will need to be tested over time. DBG (1996) also made it clear that the current centralised approach, whereby the Civil Service Commission makes selection for the vast majority of appointments, is likely to remain. However, in the longer term it is also stated that "a new model for public service recruitment, underpinned by new legislation, is currently being developed" (see Ahern 1999, p.4).

Finally, an administrative development with provisions similar to those of the Parental Leave Act has also been introduced in the public service. A pilot term time working scheme was introduced within the Civil Service in 1998 and is currently being extended across the Civil Service. This scheme allows staff who have one or more children under the age of 17 to take unpaid leave for a set period during the school summer holidays. The scheme provides for 10 weeks leave for parents with children attending primary school and 13 weeks for those with teenage children (since their school holiday period is longer). Civil servants who are not necessarily parents but who are primary carers of a person residing with them who has a disability of a nature which requires full-time attention may also take leave under the initiative. It has been argued that the initiative is "seeking to address the thorny problem of career versus family which is of particular relevance in an environment in which the civil service are experiencing the difficulties of recruitment and retention" (see IPD, 1999).

6.6 Key messages

"The buoyant jobs market means that, due to our economic success, most employers, including the Civil Service, are experiencing difficulties in attracting and retaining high quality recruits. Without the people to do the work, the service cannot be provided..." (Ahern 1999). Similar difficulties are being experienced in the commercial sectors, as companies attempt to represent themselves as employers of choice. However, a number of key messages also emerge from the legal analysis:

  • Any responsible discussion of the potential further development of family friendly /flexible working arrangements must take note of the important legal dimensions to this type of working arrangement. Such arrangements are not uncontroversial and an understanding of the legal implications of their wider promotion is essential.
  • Efforts to enhance the position of commercial and non-commercial organisations as "employers of choice" in the current labour market need to be fully aware of, and responsive to the changing legal and administrative contexts within which such developments will take place, at both national and European levels.


Chapter One: Background and Introduction
Chapter Two: What are Family Friendly Working Arrangements?
Chapter Three: Why Work Flexibly?
Chapter Four: How Much Working is Flexible
Chapter Five: Changing Policy Perspectives
Chapter Six: Legal Perspectives
Chapter Seven: Workplace Perspectives
Chapter Eight: Key Issues and Challenges
Annex One Checklist for developing family friendly/flexible working arrangements in the workplace

Last modified:07/11/2008

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