We have a number of employees on continuous temporary contracts of employment, dating back from March 2009. They are all on the Company head count (not Agency). Their hourly rate of pay is €4 less than our permanent employees. All other terms and conditions are equal. Are we legally obliged to pay a similar rate of pay to the permanent employees, based on the terms of the Protection of Employees (Fixed Term Work) Act 2003?

The Protection of Employment (Fixed Term Work) Act 2003 provides that fixed term workers should receive no less favourable treatment than a comparable permanent employee in respect of their terms and conditions of employment, which includes their remuneration.

A comparable permanent employee is one who generally performs the same work, or similar work, or work of equal value. Therefore, if the fixed term workers can point to an appropriate permanent comparator they may be able to justify a claim under the 2003 Act unless the difference in rate of pay can be objectively justified. A defence of objective justification is very difficult to maintain and cannot be based solely on the fixed term