We are delighted to formally announce the expansion of EEFNI services to the Republic of Ireland. Our service will include HR and employment advice and legal representation.

This service will commence on Monday, 4 October 2021 and is available to all existing EEFNI Members with businesses in the Republic of Ireland.

Membership fees for the Republic of Ireland will be calculated separately, based on the payroll records of the business entity in the Republic of Ireland.

If you have previously expressed an interest in this service or would like to receive details of the annual subscription fees for ROI Membership, please contact John Gibson, Office Manager john@eefni.org.

This is an exciting next step for the team at EEF NI and we are very much looking forward to developing our all Ireland service.

The ICO has recently launched a call for evidence and consultation on the following areas, which we believe are relevant to Members.

1.  Call for Evidence: Employment Practices Guidance
2.  Consultation: How organisations can continue to protect people’s personal data when it’s transferred outside of the UK.

These are discussed in more detail below.

1. Call for Evidence: Employment Practices Guidance:

 The Information Commissioner is calling for views on data protection and employment practices to help shape the review of the current guidance. The call for evidence is open until 21 October 2021;

Members may be aware that the ICO has detailed employment practices guidance, including the employment practices code, supplementary guidance and the quick guide. These are now considered outdated as much has changed since they were published, both in terms of data protection law and the way everyone works.

The ICO plan to replace the existing guidance with new, more user-friendly online resources that are topic-specific. The aim is to ensure that the new guidance addresses the changes in data protection law, reflects the changes in the way employers use technology and interact with staff and meets the needs of the people who use the guidance.

The Commissioner is seeking input from relevant stakeholders, including employers and will use the responses to inform their review resource. The Guidance is intended to cover ‘workers’ as well as employees, contractors, volunteers, gig and platform workers.

There are several ways to participate in the call for evidence. You can either complete the online survey or fill in the Word document which has the same information. Alternatively, if you wish to pass on your feedback/views to us we can feed them into the survey on your behalf.

The online survey is live already and can be accessed by following this link: Snap Surveys

One of the ICO Commissioners has produced a blog further explaining the reasoning behind this review: Data Protection & Employment Practices

2.Consultation: How organisations can continue to protect people’s personal data when it’s transferred outside of the UK.

 On 11 August 2021, the ICO has launched an eight-week consultation on its draft international data transfer agreement (IDTA) guidance.

An IDTA is a contract that organisations can use when transferring data to countries not covered by adequacy decisions. This will replace current standard contractual clauses (SCCs) to take into account the binding judgment of the European Court of Justice in a case commonly known as ‘Schrems II’.

The IDTA will ensure there are the safeguards of high standards of data protection and support the UK’s digital economy by enabling the global flow of information.

It is recognised that international transfers can be complex and therefore the ICO has stated that they have designed the new guidance to be accessible and offer support to all organisations.

For more information about the IDTA guidance, go to: Consultation on Data

The consultation will remain open until 5pm on 7 October 2021. The ICO will use the responses to develop the final documents.

To respond to this consultation Members can download and complete the consultation paper https://ico.org.uk/about-the-ico/ico-and-stakeholder-consultations/ico-consultation-on-data-transferred-outside-of-the-uk/ and email to IDTA.consultation@ico.org.uk

Alternatively, Members can email us any views they have any, and we will input them into the Consultation.

On 30 March 2020, the Home Office made temporary changes to right to work checks in that they allowed:

• Checks to be carried out over video calls;
• Job applicants and existing workers to send scanned documents or a photo of documents for checks using email or a mobile app, rather than sending originals;
• Employers to use the Home Office Employer Checking Service if a prospective or existing employee could not provide any of the accepted documents.

These temporary changes have been extended on various dates:

• 17 May 2021
• 20 June 2021
• 31 August 2021

The Home Office has confirmed that the temporary checks will now remain in place up to and including 5 April 2022. In their updated Guidance: Coronavirus (COVID-19): right to work checks it states:

“The end date for the temporary adjusted checks has now been deferred to 5 April 2022 (inclusive). We have made the decision to defer the date following the positive feedback we received about the ability to conduct checks remotely. We initiated a review of the availability of specialist technology to support a system of digital right to work checks in the future. The intention is to introduce a new digital solution to include many who are unable to use the Home Office online checking service, including UK and Irish citizens. This will enable checks to continue to be conducted remotely but with enhanced security.”

The full right to work checks only need to be conducted from 6 April 2022.

With the Work from Home message currently still in place in Northern Ireland this will be very welcome news for employers.

As part of our expansion plans, we are currently recruiting for an ROI qualified Employment Lawyer to join our well-established niche employment law team in Belfast.

This is an excellent opportunity to join our thriving employer-focused firm as we extend our practice to ROI.

The suggested experience level is circa 2yrs PQE but all levels of qualification will be considered. As this will be a role that involves both advisory work and Tribunal/WRC representation, experience of working on contentious matters including the WRC is preferred.

If you are interested in finding out more please contact info@eefni.org or Stuart Johns at Abacus by email stuart@abacus.jobs or phone 07803 146424

The SSP Repayment Scheme, put in place in March 2020, allows businesses to claim back up to 2 weeks of SSP as a result of the Coronavirus Pandemic.

The repayment is available from the first qualifying of sickness when an employee is unable to work because they:

• have coronavirus symptoms
• are self-isolating because someone they live with has symptoms
• are self-isolating because they’ve been notified by the NHS or public health bodies that they’ve come into contact with someone with coronavirus
• have been advised by letter to shield because they’re clinically extremely vulnerable
• have received a relevant notification requiring them to self-isolate before surgery for up to 14 days

The scheme is only available to businesses with fewer than 250 employees, as of on 28 February 2020 across all PAYE payroll schemes.

HMRC have now updated their guidance to confirm that employers can only claim for employees who were off work on or before 30 September 2021. Therefore, businesses will not be able to recover SSP for any absences that occur after this date.

The updated Guidance can be accessed HERE

FURLOUGH SCHEME

The Coronavirus Job Retention Scheme (CJRS) is due to end on 30 September 2021. At this stage, we are not aware of any possible extension to the Scheme. Therefore, we would encourage any companies still relying on the Scheme to consider the position of those employees that are still furloughed and to communicate with them in advance of the Scheme ending.

We will be publishing updated furlough template letters  next week. However, if you wish to discuss the individual circumstances of any employees, please contact the Legal Team.

An additional bank holiday has been announced to celebrate the Queen’s Platinum Jubilee. This will take place on Friday 3 June 2022 elongating that weekend as the Spring Bank holiday (that normally occurs on the last Monday in May) has been moved to Thursday 2 June 2022.

We have set out the legal position for employers who are unsure whether they are legally obliged to provide employees with this additional day’s holiday.

Legal basis

Employees are legally entitled to a minimum of 28 days holiday each year.

In Northern Ireland there are 10 public / bank holidays which in 2021 and 2022 fall on the following dates:

Employees have no statutory entitlement to a public or bank holiday as long as they receive a minimum of 28 days leave each year and generally, the documentation issued to employees (such as contract of employment / statement of particulars) will specify if holiday entitlement is inclusive or exclusive of public / bank holidays.

Therefore, any right to this extra bank holiday will depend on the terms of this documentation.

For example, if the contract of employment / statement of particulars states:

“You are entitled to 28 days holiday each year which includes the 10 public / bank holidays listed below…”

This means that these employees are not entitled to the additional Jubilee Bank holiday. Indeed, we anticipate that most of our Members’ contracts of employment / relevant policies will not confer a right to this additional Jubilee bank holiday.

However, even if there is no contractual entitlement to this extra day bank holiday employers may choose, as a gesture of goodwill, to allow employees to take the additional day’s leave. If employers choose to give the additional day, it is important that in any communication it is made clear to employees that this is a discretionary one-off entitlement.

Pay

The position in respect of pay is similar. Employees have no legal entitlement to an enhanced rate of pay for working a bank holiday unless provided for in their contract of employment or if it has been established through custom and practice.

CONSULTATION: MAKING FLEXIBLE WORKING THE DEFAULT POSITION

The UK Government announced earlier this week that it was considering legislation to provide employees with a Day 1 right to request flexible working.

The 56 paged Consultation Document has now been published.

The Consultation Document sets out five proposals for reshaping the existing regulatory framework so that it better supports the objective of making flexible working the default. These are:

1. Making the Right to Request Flexible Working a Day One right (removing the 26 weeks qualifying period);
2. Considering whether the eight business reasons for refusing a Request all remain valid and with possibility of replacing them with a ‘reasonableness of refusal test’;

3. Requiring the employer to show that they have considered alternative working arrangements when rejecting a statutory request for flexible working?

4. Reviewing the administrative process underpinning the Right to Request Flexible Working to include:

• • Increasing the number of times an employee can submit a request to work flexibly (currently it is one request very 12 months)?
  • Shortening the period of time that an employer must respond to a flexible working request (currently it is 3 months)?

5. Include a right to request a temporary arrangement.

The Document notes that “The territorial extent of these proposals extends to England, Wales, and Scotland. Employment law is devolved to Northern Ireland.”

Therefore, whilst these proposals are of interest to Northern Ireland, it will be for Stormont to decide our direction and whether we will follow suit.

The Consultation closes on 1st December 2021.

We will be considering the proposals in greater detail and welcome any Member feedback which will be included in any response that we submit.

The Consultation Document can be accessed HERE

GOVERMENT RESPONSE ON CARER’S LEAVE

In March 2020, the Government launched a consultation on Carer’s Leave in recognition that unpaid carers face particular challenges in balancing work and caring responsibilities that may warrant a specific new employment right to time off from work.

Over 800 responses were received, and the Government has now published its response. It proposes to bring forward laws to introduce a new leave entitlement for unpaid carers through legislation when parliamentary time allows.

The entitlement will provide for:

• A right for unpaid carers to take up to one week (5 working days) of unpaid leave per year.
• This will be a Day 1 right
• It will broadly follow the definition of dependant used in the right to time off for dependants
• The person being cared for must have a long-term care need.
• The leave can be taken flexibly, either in individual days or half days, up to a block of one week.
• The notice requirement will be in line with that of annual leave, where an employee must give notice that is twice the length of time being requested as leave, plus one day.
• Employers will be able to postpone, but not deny, the leave request.
• Refusal grounds will be strictly limited to where operation of their business would be unduly disrupted.
• No requirement to provide evidence to the employer

Despite being asked to include childcare, the Government has stated that the right to take carer’s leave is not the appropriate place to address potential changes to parental leave entitlements. However, it proposes to consider changes to parental leave and flexible working ‘when the time is right.’

The full response can be accessed HERE

‘FIRE & REHIRE’ CIPD GUIDE

‘Fire & Rehire’, the phrase commonly used when an employer dismisses an employee on existing terms and conditions and rehires them on new ones. The practice has received some negative press this year with the Labour Party even calling for an outright ban on it.

However, there is a growing recognition that, used correctly, fire & rehire is needed as a last resort and provides both businesses and employees with choices.

CIPD has now produced a helpful Guide for any businesses considering it as an option.

It has sections on:

• Overview
• Context
• Varying the terms and conditions of employment
• Good practice dos and don’ts – changing terms and conditions
• ‘Fire and rehire’
• Case study: changing employment terms and conditions
• Importance of considerate and empathetic management
• Conclusion
• Case study scenarios

The Guide can be accessed HERE

Whilst the Guide is a worthwhile read for any business considering this option, we strongly encourage our Members who are considering dismissing and re-engaging employees, to contact the Legal Team for specific legal advice on their particular circumstances.

With recent changes taking place to UK immigration routes, the Home Office has refreshed their Guide, ‘Points-Based Immigration System: Introduction for Employers’.

The updated Guide that can be accessed HERE

The Home Office states that the aim of the update is to ensure employers are aware of how they can recruit talented individuals from around the world through a number of different immigration routes.

The Guide provides:

• An overview of the points-based immigration system work routes and sets out the steps employers should take to access the system;
• The latest guidance on the Temporary Worker Routes and;
• Updated information on conduct Right to Work Checks.

As expected, the Home Office continues to encourage employers to first consider domestic recruitment options within the UK. Therefore, the Guide provides examples of programmes available to employers who are considering hiring employees, offering work experience or upskilling their existing staff.

Last week the Supreme Court handed down its decision in Kostal UK Limited v Dunkley & Others. This is a case we previously covered at our Annual Review of Employment law when the matter was considered by the Court of Appeal.

Any employer who recognises a Trade Union for collective bargaining purposes needs to be aware of this important decision.

Please note this decision and the advice below is in respect of making offers to the workforce (e.g. in respect of pay) and is not in relation to the process of enforcing changes to terms and conditions of employment.

The Facts

The employees were all members of Unite the Union working for Kostal UK Ltd. Kostal and Unite signed a (non-legally binding) Recognition and Procedural Agreement in February 2015. In October 2015, they began formal annual pay negotiations.

In November 2015, following two meetings with Unite representatives, the Company put a pay offer of 2% plus a £270 Christmas bonus to Union members. Unite balloted and rejected the offer. The Company did not continue negotiations with Unite. On 10 December 2015 the Company made the same offer to its employees directly, bypassing Unite and stating if employees did not accept it by 18 December 2015 they would not receive the Christmas bonus.

On 29 January 2016, the Company made another similar offer to those employees who had not yet accepted the first offer. The Company stated that if no agreement was reached, “this may lead to the company serving notice on your contract of employment“.

Almost a year later in November 2016, when over 97% of employees had accepted one or other of the direct offers, the Company and Unite reached a collective agreement for 2015 on similar terms to the direct offers.

The Claim

57 employees brought Employment Tribunal claims against the Company. The claims alleged each letter constituted an “unlawful inducement” contrary to Section145B of the Trade Union and Labour Relations (Consolidation) Act 1992.

Equivalent legislation exists in Northern Ireland under Article 77B of the Employment Rights (Northern Ireland) Order 1996.

The Law

Section 145B sets out that a direct offer to employees that bypasses collective bargaining arrangements will be an unlawful inducement if it produces the “prohibited result.” The “prohibited result” is that some or all of the workers’ terms of employment will not be determined by the collective agreement negotiated by the Union and the employer’s sole or main purpose in making the offers is to achieve that result.

The penalty for taking this step in GB is currently £4,341 per person; in Northern Ireland the penalty is higher at £4,552 per person.

The purpose of the legislation is to ensure employers adhere to collective bargaining agreements by limiting the employer’s ability to bypass a recognised Trade Union and make offers directly to its workforce.

The Supreme Court’s Decision 

The Supreme Court found the Company had breached s.145B and each Claimant was awarded £3,830 (the statutory limit at the time) in respect of each unlawful inducement. The Supreme Court found that each letter amounted to a separate offer and thereby awarded £7,660 per Claimant (over £436,000 in total.)

In finding against the Company, the Supreme Court noted the recognition agreement specified when the collective bargaining process would be exhausted. However, the Company sent the letters to the employees before that process had been exhausted. Specifically, a 4-stage procedure was contained in an Appendix to the Recognition Agreement, with stage 4 being a referral to ACAS conciliation. The dispute was not referred to ACAS until after the Company had issued the letters to the workforce.

Therefore the collective bargaining process was ongoing at the time the offer was made and the Company’s offer had the prohibited result that employment terms were determined outside collective bargaining.

What are the important take-aways from this case?

1. An employer can make direct offers to workers, but only after the collective bargaining process agreed with the recognised Trade Union has been followed and exhausted. In this case it appears the process had, at best, stalled;
2. Where a Trade Union is not yet recognised, an employer is free to make direct offers to workers without fear of contravening this law;
3. One of the key questions will be when is the collective bargaining process exhausted? This will undoubtedly be open to debate. If the relevant recognition agreement specifies when the process has been exhausted, this must be adhered to.  If the recognition agreement does not specifically address this then you should ensure you follow every step in the collective bargaining process, including any dispute resolution terms, before going directly to your workforce. We can also foresee arguments possibly being made by Trade Unions that the Company failed to engage in the negotiation process in good faith;
4. The decision does not mean Unions have a veto, but bypassing the Union will only be possible where the employer can demonstrate a genuine belief that collective bargaining has been exhausted.
5. Members should review their collective agreements to ascertain if they clearly define the process to be followed and state the point at which the process will be exhausted.

Aside from this case there has been very little litigation regarding this aspect of industrial relations law. This may now change.

The Supreme Court Judgment can be accessed HERE