efni admin, Author at Employers Federation Northern Ireland

The Labour Government’s Autumn’s Budget Autumn’s Budget has met with mixed responses. Tax is not one of the areas that is devolved to the Northern Ireland Assembly and The Executive so the increases in taxation will apply here.

[Note however Northern Ireland does have responsibility for local taxes (domestic and business rates). In March 2015 Parliament passed the Corporation Tax (Northern Ireland) Act 2015 which, subject to commencement regulations, will devolve corporation tax rate setting powers to the Northern Ireland Assembly. The Government has committed to commencing the regime if the NI Executive demonstrates its finances are on a sustainable footing.]

THE TAX RISES IN THE BUDGET THAT WILL AFFECT BUSINESSES INCLUDE:

Employers National Insurance Contributions (NIC)
This is a rise of 1.2% rise from 13.8% to 15% to only the Employers element of National Insurance Contributions. The threshold at which payments start will also fall to £5,000 from £9,100 meaning that businesses will have to start paying NIC on a larger portion of their employees’ salaries.

To soften the impact on small businesses, in April 2025 Employment Allowance will increase to £10,500 (from £5,000), providing some protection to the smallest businesses.

Income Tax

The Budget confirmed that Income Tax and National Insurance Contributions thresholds will continue to be frozen and only unfrozen from 2028-29 onwards.

National Living Wage
Prior to the Budget the Government confirmed that from April 2025 the National Living Wage for those aged 21 and over would increase to £12.21, representing a 6.7% increase of 77p.

National Minimum Wage

In addition the Government also confirmed that they would fully accept the Low Pay Commission’s (LPC) recommendations on the rates of the National Minimum Wage (NMW), including the National Living Wage (NLW). For the first time, the Government asked the LPC to take into account the cost of living, including expected trends in inflation up to March 2026, when recommending the NLW. The LPC expects its recommended rate to represent a real-terms increase across the whole of the period to March 2026, using any major inflation measure, thereby protecting low-paid workers’ living standards.

18-20 years old from £8.60 to £10.00 (increase of 16.3%)
16-17 years old from £6.40 to £7.55 (an increase of 18.0%)
Apprentice rate from £6.40 to £7.55 (increase of 18.0%)

Corporation Tax

This will be capped at 25% for next 5 years and small business tax multiplier froze.

Capital Gains Tax (CGT)
Effective immediately, CGT charged on profit made from the sale of assets, will increase with the lower rate rising from 10% to 18%, and the higher rate from 20% to 24%.

Fuel Duty
Fuel duty will be froze for another year with the temporary 5p cut extended to 22 March 2026.

Company Car Tax Incentives for electric vehicles.

Impact
The investment projects in England proposed to boost the economy do not apply here. Instead Northern Ireland receives additional funding via the Barnett formula and NI Executive then decides on how to spend that money.

This additional funding amounts to £1.5 billion in 2025-26:

£1.2bn for day-to-day spending and;
£270m for capital expenditure i.e. infrastructure investment.

Statistics for March 2024 show that the majority (89% or 71,425) of businesses in Northern Ireland are micro-sized businesses (less than 10 employees). These tax measures will affect all businesses especially with the higher minimum wage and changes afoot on employment rights.

See Press Release: A Budget to fix the foundations and deliver change for Northern Ireland

THE LANDMARK THE BILL EMPLOYMENT RIGHTS BILL IN GREAT BRITAIN

On 10 October 2024, the Labour Government unveiled its once-in-a-generation Employment Rights Bill (the Bill), in what has also been referred to as a significant milestone in the evolution of workers’ rights in Great Britain. The Bill runs to 157 pages and is accompanied by over 100 pages of Explanatory Notes. In addition to the Bill, the Government also published a document Next Steps to Make Work Pay that summarises the reforms in the Bill and also other changes it is looking to implement in the future.

With 28 individual employment reforms, this substantial Bill will dramatically transform employer’s obligations and the workplace landscape. These changes will apply across the board and include changes on matters such as unfair dismissal, sick pay, changing terms, unpredictable hours contracts, flexible working, equality at work, trade union rights, family leave, and redundancy.

This Article considers the key proposals and compares the position in GB to what is being proposed in Northern Ireland.

CONSULTATIONS

Whilst most of the Consultations (and there will be quite a few) flowing from the Bill, will commence in 2025, four Consultations were commenced on 21 October 2024. Those Consultations periods will last for 6 weeks until 2 or 4 December 2024.

These are Consultations on:

FACTSHEETS

Given the scope and breadth of the changes the Government also published
10 Factsheets summarising the key changes and areas for consultation. The Factsheets cover:

1. Employment Rights Bill Overview
2. Unfair Dismissal
3. Fire and Rehire
4. Statutory Sick Pay
5. Trade Unions
6. Bereavement, Paternity and Unpaid Parental Leave
7. Zero hours contract
8. Fair Work Agency
9. Adult Social Care Negotiating Body

10. School Support Staff Negotiating Body

SUMMARY OF THE KEY CHANGES

Day 1 Right to Claim Unfair Dismissal:

At present in GB, employees need 2 year’s continuity of service to bring a claim for unfair dismissal. In Northern Ireland only 1 year’s continuous service is required. The Bill will introduce a Day 1 right to claim unfair dismissal in GB.

In a concession to the business community who raised concerns that Day 1 Rights will discourage employers from taking a chance on new employees, the Government has included a new statutory probationary period. The suggested period is 9-months which is subject to Consultation. The Consultation process will also flesh out how this new right will operate, what type of ‘lighter touch’ process will apply during the probationary period and what compensation will be available to employees.

Statutory Sick Pay (SSP):

In GB, the Government will remove both the 3-day waiting period and the lower earning threshold (of £123) before being entitled to SSP. This will mean that more workers, including those with lower incomes, will be able to SSP from the first day of the sickness.

On 21 October 2024, the Department of Work and Pensions (DWP) in GB launched a Consultation to consider what the percentage rate for those earning below the current flat rate of Statutory Sick Pay should be.

SSP is a devolved matter in Northern Ireland. This means that any decisions on changes to SSP in Northern Ireland (including whether to continue to align with the changes proposed in GB) are a matter for the Executive and NI Assembly.

Having said that historically Northern Ireland has maintained parity with the rest of the UK. On 30 October 2024, the Northern Ireland Department for Communities (who has responsibility for SSP) published a link to the DWP’s Consultation on its webpage and is actively encouraging Northern Ireland stakeholders to respond. This is perhaps a signal that similar changes to SSP will be made here.

To prepare for potential changes members could work with their payroll provider to calculate the possible extra cost and check that it will be able to adjust its systems as appropriate when the measures are implemented in GB and potentially NI. In addition, since the changes could potentially increase short-term absence in companies with no or limited company sick pay, you may want to review attendance management procedures, including triggers, and refresh manager training for handling frequent short-term absence.

Ending ‘Exploitative’ Zero-Hours Contracts

The Bill seeks to end the one-sided flexibility of certain ‘exploitative’ zero-hours contracts by providing that employers must make a Guaranteed Hours Offer to zero-hours workers and those with a ‘low’ number of guaranteed hours at the end of a specified reference period. This offer may need to be repeated at the end of each subsequent reference period.

The ‘Next Steps to Make Work Pay’ document indicates that the reference period, which is not currently defined, will be 12 weeks, and the definition of ‘low’ guaranteed hours is left for Regulations and will be subject to consultation. The offer of guaranteed hours, which may be a contract variation or a new contract, must reflect the number of hours that the individual regularly worked over the reference period and cannot be for a limited term contract, unless reasonable. The Bill allows for Regulations to go further and provide that the guaranteed hours offer must also reflect the pattern, days and times of day worked in the reference period. The worker will be able to agree, ignore or refuse the offer, but the offer must be made regardless.

As stated above the Consultation has been launched that considers whether to extend these measures to agency workers.

It is intended that where the employment is genuinely temporary, employers will not have to offer permanent contracts, and that workers on other types of contract who occasionally pick up overtime will not be affected.

The Bill contains lengthy and complicated provisions aimed at ensuring that workers get reasonable notice of the scheduling of a shift, as well as of changes and cancellations to shifts, with proportionate compensation for any shifts which are cancelled or curtailed at short notice. These provisions apply to zero-hours workers and those on minimum hours and those who do not have a set working pattern. There will be a presumption that notice is not reasonable, unless it is given a ‘specified time’ before the shift is due to start. Regulations will define the ‘specified time’. It also remains to be seen what type of reasons would be sufficient to counter the presumption that notice is not reasonable, where notice is shorter than the specified time.

To prepare for this change, it is worth reviewing your processes around scheduling rosters and shifts.

Proposals to ending exploitative Zero Hour Worker Contracts in Northern Ireland are also being considered with options being proposed are moving to a Banded Hour Contract, similar to that in operation in Republic of Ireland or moving to measures similar to GB.

Making Flexible Working the Default from Day One

The Bill amends the current GB provisions in place that extended the right to request flexible working in April 2024. The proposals in the Bill further extend that right by shifting the emphasis to a default right unless there are reasonable grounds for refusing it.

The eight statutory grounds for refusing a request will remain as will the compensation regime which is limited to 8 weeks pay. However, this reasonableness requirement is a higher threshold than under the current GB laws. In addition, employers will be required to explain, in writing to the employee, why their refusal is reasonable.

In Northern Ireland proposals to extend the right to flexible working are also being considered. However, as they stand these proposals are simply to level Northern Ireland up to the position in Great Britain following the changes that were implemented in April 2024. This includes making the right a Day 1 right, permitting two requests (and not one) in any 12 month period and no longer requiring the employee to explain what effect their request will have on the employer.

Positive Duty to Prevent Sexual Harassment

On 26 October 2024, a new positive duty was placed on employers in GB to take reasonable steps to prevent sexual harassment at work. The Bill will extend this duty so that employers will have to take all reasonable steps to prevent sexual harassment of their workers in the course of employment. See our previous article here

Currently there is ambiguity around the ability to bring a third-party harassment claim i.e. a claim brought by an employee alleging that they have been sexually harassed by a third party such as a client or customer who is not an employee of the Company. Although the Equality and Human Rights Commission takes the view that the sexual harassment preventative duty already covers third party harassment, this can only be enforced by the EHRC.

The Bill would give workers the right to claim compensation for third party harassment – without the requirement (that is currently the position in Northern Ireland) for the employer to be aware of two previous occasions of harassment. In addition, the Bill will extend what is a protected disclosures under whistleblowing legislation to include a disclosure that sexual harassment has occurred, is occurring or is likely to occur.

This is one area in which the law in Northern Ireland and GB differs significantly.

In Northern Ireland an employer is currently liable for third party sexual harassment if it knew that an employee has been harassed on grounds of sex in the course of their employment on at least two other occasions by a third party, and not taken reasonable steps to prevent it from happening for a third time to the employee.

In Northern Ireland there are no similar proposals to introduce such a positive duty – however employers should take heed of the guidance as it may influence the NI Tribunals when assessing what constitutes reasonable steps to successfully defend against a discrimination case. In NI discrimination laws are the responsibility of the Executive Office, not the Department of Economy, and therefore this is an area that was not included in the Good Jobs Consultation.

Ending Fire & Rehire Practices

Much to the surprise of the business community, the Bill goes much further than anticipated. It effectively makes the use of dismissal and and re-engagement only possible if necessary for business viability where no genuine alternative exists.

The Bill will make it automatically unfair to dismiss an employee in order to vary their contract where the employee does not agree the variation, or to employ another person on varied terms to carry out substantially the same duties as the employee before the dismissal. The Government is of the view that current Statutory Code of Practice on Dismissal and Re-engagement, which came into force on 18 July 2024, does not go far enough.

The Bill sets out factors that a tribunal must consider when determining whether a dismissal is fair, including if there was any consultation with the employee and/or any consultation with a recognised union or other representative body. The Tribunal can also take into account if anything was offered to the employees in return for them agreeing to the variation.

This is an area that the Northern Ireland ‘Good Jobs Bill’ Consultation is also considering and it has been anticipated Northern Ireland would implement a Statutory Code of Practice on Dismissal and Re-engagement,. Time will tell whether the direction in GB paths the way for similar proposals here.

Strengthening provisions on Collective Redundancy Consultation

Statutory Collective Redundancy Consultation is currently triggered where an employer proposes 20 or more ‘redundancies’ (which includes dismissals and re-engagements to change terms) in a rolling 90-day period at one establishment.

The Bill removes the wording ‘at one establishment’, so employers with more than one site (but where the employer is the same legal entity) will have to count proposed redundancies across all sites in a 90 day period when assessing whether statutory collective consultation is triggered.

In Northern Ireland there are no similar proposals in the Good Jobs Bill. However, in our response to the Department of the Economy we made submissions asking for the current 90 day consultation period (that is required in NI when proposing to make redundancies of 100 or more) to be reduced to 45 days in line with Great Britain.

Changes to Family and Other Leave

The Bill introduces various enhancements to family and other leave including Day 1 rights to unpaid parental leave and paternity leave. The Bill also extends the entitlement to unpaid Bereavement Leave when anyone dies to whom they have a specified relationship. What constitutes a special relationship will be a matter for consultation.

The restriction on taking paternity leave following a period of shared parental leave will also be removed.

In its Next Steps Document, the GB Government has stated that it plans an overhaul and review of the whole parental leave system so we can expect more changes here.

In Northern Ireland, the ‘Good Jobs Bill’ Consultation proposes to introduce new rights reflecting those that were introduced in GB in 2024. In the main (with some small differences) the proposals will reflect those rights currently in place in GB before the changes provided for in this Bill.

Northern Ireland will therefore align to GB (before these further changes provided for in the Bill) on areas of:

Flexible Working
Carers Leave
Neonatal Care Leave & Pay
Extension to protection from Redundancy
Paternity Leave

Equality Action Plans

The Bill requires large employers to publish action plans to address Gender Pay Gaps and support staff going through the menopause. Regulations may prescribe the content of such plans, how frequently they should be published and the requirement for senior leadership approval. The Bill also introduces a new requirement for employers to identify the providers/employers of contract workers when publishing their gender pay reports.

In Northern Ireland, the Department for the Communities (who has responsibility for this area) has informed us that the legislation is in place that when enacted will require employers to publish information relating to the pay of employees for the purpose of showing whether there are differences in the pay of male and female employees, i.e. the Gender Pay Gap. The way forward on how this legislation is to be enacted is currently being considered and will be announced in due course.

When enacted the Northern Ireland provisions will require reporting on disability and ethnicity of workers within each pay band. Precisely what statistics must be calculated and within which “pay bands” is still unknown at this point and remains to be clarified by the eventual Regulations.

Trade Unions and Industrial Action

Strengthening the trade union movement is one of the key aims of both the GB Government and Department of Economy in Northern Ireland. However, the laws governing trade unions are different in GB and Northern Ireland. This is because Northern Ireland never implemented counterpart laws to the Trade Union Act 2016 in place in GB or sought to impose restrictions on striking which were introduced in GB under the previous Conservative Government.

Many of the GB proposals are around repealing the Trade Union Act 2016 and subsequent laws that were introduced under the previous Conservative Government. Essentially this will bring the position back in GB to the current position in Northern Ireland. Some of the changes in GB include simplifying the ballot and notice requirements for industrial action and the process for TU recognition. Both jurisdictions are also considering permitting electronic ballots.

In both jurisdictions there are proposals to make it easier for trade unions to access the workplace but the detail may differ as Northern Ireland’s proposals are not as well formed as GB’s. The GB Bill requires employers to inform their workers that they have the right to join a trade union and makes it easier for trade unions to access the workplace. There are detailed provisions about negotiating access agreements, which involve the Central Arbitration Committee (CAC), who will also be responsible for dealing with complaints about breaches of access agreements. The equivalent to the CAC in Northern Ireland is the Industrial Court.

The Bill also bolsters rights to time off and access to facilities are strengthened for TU officials and learning representatives, and TU equality representatives who have met specific training conditions.

We do recommend that you review your industrial relations strategy, and move towards a proactive approach; for example, consider the introduction of works councils, employee forums etc. to improve workforce engagement and give staff a collective voice. You may also want to support your managers on working more successfully with trade unions, for example training them on negotiation skills and managing conflict.

New Single Enforcement Body, the Fair Work Agency

The Bill provides for a new single enforcement body, the Fair Work Agency, to strengthen enforcement of workplace rights. This will bring together existing enforcement functions, including with regard to the minimum wage, statutory sick pay, the employment tribunal penalty scheme and labour exploitation and modern slavery, as well as gaining a remit over the enforcement of holiday pay.

There are no similar proposals in Northern Ireland at present.

Looking Ahead

The Consultations on the GB Bill is ongoing, with critical details and operational mechanisms being scoped out. While some rights will require primary and secondary legislation, others could be implemented more quickly. It is predicted that the new unfair dismissal rights will not come into force until October 2026.

Employment law in Northern Ireland is devolved, with the Department for Economy currently considering responses to the NI Good Jobs / Employment Rights Bill. While there are some similarities to GB proposals, Great Britain is undoubtedly leading the way and will likely influence policy making and direction in Northern Ireland. The rapid changes in the employment landscape highlight the importance of staying informed and prepared for future developments.

We will of course keep you updated on any further developments.

LEGAL UPDATES

1. Pension auto enrolment update

We have been updating members on an ongoing basis in relation to the implementation of the Government Pensions Auto Enrolment Act 2024. Members will be aware that the act was signed into law on 9^th July 2024 with an (ambitious) implementation date scheduled for 1^st January 2025. There had been widespread concern by employers that there were insufficient details about the operation of the scheme and the framework to ensure payments were processed correctly.

By way of a reminder, when introduced, the act will:

apply to employees between the ages of 23-60 whose gross pay is in excess of €20,000. Contributions based on gross pay of up to a maximum €80,000.
Contributions will increase on a gradual incremental basis as set out in the table below.

	Years 1-3	Years 4-6	Years 7-9	Years 10 onwards
Employee Contribution	1.5%	3%	4.5%	6%
Employer contribution	1.5%	3%	4.5%	6%
State contribution	0.5%	1%	1.5%	2%
TOTAL	3.5%	7%	10.5%	14%

Employees will be eligible to ‘opt out’ in months 7 and 8 or suspend their contributions. Employees who opt out may be entitled to a refund of their own contributions, however the Bill does not currently provide for a refund of the employer.
Employees who leave the plan or suspend their contributions will be automatically re-enrolled in the scheme after 2 years if they are still eligible.

If any employee leaves employment, their pension pot, and enrolment in the scheme is unaffected, and will continue in their new employment.

The government has now confirmed that the scheme will start on 30th September 2025. Minister Humphreys, Minister for Social Protection, confirmed that employers now have a full year lead-in time to enable sufficient preparations to be made.

The Government’s online guidance has also been updated which provides some useful information for employers, particularly where the employer already operates an existing occupational pension scheme to employees.

Under Section 51 of the Auto-Enrolment Act 2024, an employee will be in ‘exempt employment’ if there is a pension contribution from the employee or employer, paid through payroll.

For the first few years of auto-enrolment, any pension contribution greater than zero will be enough to exempt an employment. However, by the end of year six of the operation of the scheme, at the latest, standards for the exemption of existing pension schemes will be developed with the assistance of the Pensions Authority.

2. Budget

On 1 October 2024, the Irish government announced a number of significant measures that will apply for 2025, some of which seek to address the cost-of-living challenges in Ireland. In addition, some retrospective income tax credits may be available in 2024 for some taxpayers.

The key employment related measures are listed below:

The national minimum wage will increase by 80 cent to €13.50 per hour from 1 January 2025
The USC will be cut from 4% to 3% on incomes of €25,000 to €70,000, the second consecutive reduction to the USC rate
Entry threshold to 3% rate increased by €1,622 to €27,382

A high-level overview of the budget is available here

3. The Maternity Protection, Employment Equality and Preservation of Certain Records Bill 2024

One of the last pieces of legislation to be passed before the Dáil is dissolved, ahead of a general election, is the Maternity Protection, Employment Equality and Preservation of Certain Records Bill 2024.

The Bill will be sent to the President for signing into law and will commence at a date in the future, following the introduction of a commencement order to give the new laws effect.

The Bill, when it becomes an Act, will see the introduction of two significant changes affecting employment law practice, namely:

the postponement of maternity leave in the event of a serious health condition; and
a restriction on the use of non-disclosure agreements in respect of allegations of discrimination, victimisation, harassment and sexual harassment, whereby such agreements will be null and void unless certain conditions are met.

Postponement of maternity leave in event of serious health condition

The Bill provides that:

A relevant employee (i.e. someone who is pregnant or on maternity leave and has a serious health condition) can notify their employer that they intend to postpone the commencement of all or part of their maternity leave for up to 52 weeks. A serious health condition means a health condition that entails a serious risk to the life or health, including the mental health, of the employee and requires necessary medical intervention that is ongoing for a period of time.
The notification to the employer must specify the date on which the postponement is to commence and end (which must be at least 5 weeks from the commencement of the postponement) and be accompanied by a medical cert which specifies those dates. The notification must be made at least 2 weeks before the postponement is due to commence.
Where a notification is made in accordance with the above, the relevant employee will be entitled to the maternity leave (or any untaken part thereof) to be taken in one continuous period on the day immediately after the end date. The entitlement to resumed leave is subject to the employee notifying the employer in writing of their intention to commence the leave as soon as reasonably practicable but no later than on the day on which the leave begins.
Where the employee has already postponed their leave, they may notify the employer in writing of their intention to postpone the commencement of the leave one further time only.
An employee cannot postpone their maternity leave under both this provision and under section 14B (i.e. in the event of the hospitalisation of a child) in respect of the same birth.

Restriction on use of non-disclosure agreements

The Bill adds a new section 14B to the Employment Equality Acts, which provides that:

An employer must not enter into a non-disclosure agreement and if they do the agreement will be null and void. A non-disclosure agreement is defined as an agreement, or provision thereof, whether or not in writing and howsoever described, between an employer and an employee that purports to preclude the making of a relevant disclosure by the employer or the employee or both.
A relevant disclosure means a disclosure of information relating to either one or both of the following:
a. the making by the employee of an allegation that he or she was discriminated against, or subjected to victimisation, harassment or sexual harassment, in relation to his or her employment (or potential employment) by the employer;
b. any action taken by the employer or employee in response to the making of such an allegation, including any action taken in relation to any complaint made or proceedings taken, by the employee in relation to the subject matter of the allegation.
However, an employer may enter into an “excepted non-disclosure agreement” only where the employee requests the employer to do so and, prior to entering into the agreement, the employee has received independent legal advice in writing from a legal practitioner in relation to the implications of entering into an agreement. The employer must also pay the reasonable legal costs and expenses of obtaining the legal advice.
In addition, any such agreement must:
a. be in writing;
b. be of unlimited duration, unless the employee decides otherwise;
c. be in clear language that is easily understood and a format that is easily accessible (including by any party with a disability);
d. provide that the employee has a right to withdraw from the agreement without penalty within 14 days; ande. include a provision that the agreement does not prohibit the making of relevant disclosures to one or more listed persons, where, at the time of the making of the disclosure, the person concerned is acting in the course of their office, employment, business, trade or profession. Listed persons include Garda, lawyer, medical practitioner, mental health professional, Revenue, Ombudsman, trade union official or such individual as may be specified in the agreement.
WRC Mediation Exception: NDAs included as part of a Workplace Relations Commission (WRC) mediation will be lawful. This will likely incentivise employers to use WRC services, but it is important to note that a mediation conference will only be held if both parties agree in advance to participate and where there are live WRC complaints.

We will advise Members of the commencement date for the Act in due course.

A copy of the Bill, including its history, can be accessed here

4. Menopause awareness month

October is menopause awareness month, with 18^th October officially declared World Menopause Day.

The conversation regarding the menopause has changed considerably in recent years with individuals and employers more aware of the impact of the menopause on an employee’s working life, as well as the steps that can be taken to support menopausal employees.

One way of promoting awareness of menopause is by having a specific menopause policy setting out how staff can raise issues relating to menopause and how you will handle these issues when raised.

To coincide with World Menopause Day, we have produced a Menopause Policy that you may wish to adopt for your workplace.

This policy is intended to confirm your commitment to constructive, open and honest conversations about the impact of menopause on staff and to indicate the type of support that may be available to assist with any issues, that should be tailored to your organisation or reflect ones in place within the workplace.

A copy of this policy is available on the members’ area of the ROI website. If you have any questions, please do not hesitate to contact our ROI legal team

CASE LAW UPDATES

1. Karabko v TikTok Technology Limited

Right to request remote working

The WRC has issued its first decision in relation to the right to request flexible working and the right to request remote working, which is provided for in the Work Life Balance and Miscellaneous Provisions Act 2023.

In the decision, the adjudicator also gave helpful guidance on the Code of Practice on the Right to Request Flexible Working and Right to Request Remote Working (the “Code”) which was published by the WRC earlier this year following the introduction of the right to request Flexible Working through the Work Life Balance and Miscellaneous Provisions Act 2023 (the “Act”)

Facts

The Complainant, Ms. Karabko, was employed by the Respondent, TikTok Technology Limited. In her contract of employment, her normal place of work was the Respondent’s office in Dublin 2; however as a result of the pandemic the Complainant had primarily worked fully remotely, which was provided for in her contract of employment, since the commencement of her employment in January 2022.

In June 2022, the Respondent communicated its intention to have all staff work on a hybrid working basis through its ’ Return to Office’ (“RTO”) policy. The RTO policy provided for employees to attend at the office on a 2-day a week basis whilst encouraging employees to attend on site 3 days per week. The Respondent permitted the Complainant to work from home for the duration of 2022 on an “individual exception” basis however, in January

2023, the Respondent announced that the option for “individual exceptions” would cease from March 2023 and after this date all employees would be required to cooperate with the RTO policy.

The Complainant continued to work fully remotely which culminated in a disciplinary process and verbal warning being issued. On 11 March 2024, following publication of the Code, the Complainant submitted a request to work remotely on a full-time basis. As part of her formal request, the Complainant provided her reasons which included a lack of suitable accommodation in Dublin for her and her cat, reduction of her commute and improvement in quality of life.

The Respondent, complied with the timelines set out in the Act in its response to the Complainant and, following consideration of the request, refused the request and set out the reasons for the refusal.

The Complainant issued correspondence to the Respondent stating that her needs had not been considered and alleging that the Respondent failed to consider her request in an objective, fair and reasonable manner. Following from this, a meeting took place where the reasons for the Respondent’s refusal were discussed in detail. The Complainant was also offered the option to raise a grievance, which is provided for in the Code, which was not pursued by the Complainant.

The Complainant’s position was that the Respondent did not consider her request in line with the Code or the Act, namely by the Respondent considering only its needs and not hers as well. The Complainant pursued a complaint to the WRC that the Respondent was in breach of its legal obligations.

The Respondent contended that the Complainant’s request was considered, and responded to, by the Respondent in accordance with its obligations under the Act. It was submitted that the Complainant was in effect seeking to have the merits of the Respondent’s decision to refuse the request examined by the WRC, when doing so is expressly prohibited by Section 27 (6) of the Act, as confirmed by the Code.

The Respondent submitted that the fact the Complainant’s request was not granted does not give rise to an actionable breach under the Act.

Decision

The Adjudication Officer (the “AO”) found that the Complainant’s complaints were not well founded. The AO noted that one of the purposes of the Act is to “provide for the entitlement of employees to request remote working arrangements” and practical guidance on how to handle those requests are set out in the Code. The AO was clear that her remit was strictly limited to assessing whether an employer considered a request for remote working in line with the Act and in accordance with the Code of Practice.

The Adjudication Officer stated that there were three distinct duties on an employer who receives a remote working request:

Section 21(1)(a) of the Act obliges the employer to consider the request having regard to its needs, the employees needs and the requirements of the Code of Practice.
Section 21(1)(b) of the Act obliges the employer to either approve a request for remote working or notify the employee in writing of its refusal to approve the request within four weeks of the receipt of the request.
Section 21(2) of the Act provides for an extension of the consideration period of up to eight weeks.

The AO was satisfied that the Respondent had carefully considered the request and had complied with its obligations under the Act and Code of Practice.

Learning points for employers

As a reminder, neither the Code nor the Act give a legal right to flexible or remote working. The Act provides for a right to request flexible or remote working, that an employer must consider that request and provides statutory timelines in which those requests should be considered. The Code sets out steps to assist employers and employees in navigating requests for flexible and remote working, in compliance with the Act.

The above case is helpful in that it reaffirms that the Act and Code provide the right to request remote working, as opposed to the right to work remotely. However, employers should also ensure that they are able to evidence that they have considered any request and have complied with the prescribed timelines; for this reason, we would encourage all employers to document their decision-making process. It is important for employers, if they have not done so already, to ensure that they have a policy on remote and flexible working that complies with the Code as, if they do not and an employee takes a claim under the Act, it will be read against the employer.

A copy of our specimen Flexible Working Policy is available on the members area of our website.

2. Dean Hart v Komfort Kare (ADJ00051923)

Section 13 of the Parental Leave Act 1998

The Complainant presented a complaint to the WRC alleging that his employer, Komfort Kare, had denied him his statutory right to take force majeure leave, which resulted in an extended period of sickness absence.

Section 13(1) of the Parental Leave Act, as amended, sets out the right to force majeure leave, which provides for an employee to leave, with pay, from his employment for ‘urgent family reasons’ owing to an injury or illness of a specific person whereby the ‘immediate presence’ of the employee at the place where that person is, whether at his or her home or elsewhere, is ‘indispensable’

Any infringement on the right to take force majeure leave, including any detriment as a result of exercising the statutory right, can result in an award of up to 20 weeks pay.

Facts

The Complainant notified his employer that his wife was miscarrying and he requested to take force majeure leave, in accordance with Section 13 of the Parental Leave Act 1998. The Respondent agreed to the request.

On the second day the complaint contacted his employer to advise that his wife was still bleeding heavily and was unable to look after their 3 year old son.

The employer responded stating:

“Please note ‘Force Majeure means urgent family reasons where, owing to an injury or to the illness of an immediate relative the presence in the same place is indispensable. As a gesture of good will, the company will take your application into consideration if you furnish us with a letter from the maternity hospital which supports the issues you have outlined, including care instructions and support required, appointment dates. I look forward to hearing from you.”

The Complainant considered the request invasive and insensitive. He subsequently submitted a doctor’s certificate covering the absence.

Decision

The AO considered the relevant authorities which had examined the issue of ‘indispensable’ within the meaning of the Parental Leave Act and the circumstances in which force majeure leave would and would not apply.

Those authorities included:

Julie Murphy v Abtran (ADJ-00045486), Mc Galey v Liebherr Container Cranes Ltd, Giles v Outhaus Group Country Manor Bricks in ADJ 27631, and MJER v Skibal [2018] IESC.

In considering those judgments, the AO determined that the Complainant had been entitled to take force majeure leave and the failure of the Respondent to grant the complainant the leave was in breach of Section 13 of the Act.

The complainant was awarded €7000 in compensation.

Learning Points for Employers

There is limited jurisprudence in relation to force majeure leave, however those authorities that are available demonstrate that employers must apply wider interpretation to circumstances which would be considered as abnormal, exceptional or unforeseeable as well as the grounds in which an employee’s attendance would be ‘indispensable’. Whilst the law does not stipulate a medical certificate to be provided, if one were available, this might assist the employer in considering the request. The employer must of course be mindful of its obligations in relation to processing sensitive data relating to third parties.

Employers must be particularly mindful of the damage to the working relationship, as well as reputational damage, where it adopts a rigid application to the right and denies a request for force majeure leave.

3. McCabe v AA Ireland Ltd [2024] IECC 6

Data protection breach

Facts

The employee (Mr McCabe) was employed by AA Ireland Ltd and was absent form work on sickness leave in August 2022. On the last day of his sick leave, his manager recorded him with his mobile phone as he cut overhanging branches at a relative’s home. The employee challenged the manager, angrily, regarding the recording on the basis that he was wrongfully recorded at home and when he was not at work.

The employee was subsequently suspended in relation to his absence, and his reaction to his manager on the day in question and was eventually dismissed from employment. He challenged the dismissal at the WRC where he was unsuccessful.

McCabe proceeded to lodge proceedings with the Circuit Court alleging that his former employer was not entitled to use, disclose or process his confidential information without prior consent for an unlawful purpose. He alleged that the information was recorded, used, and processed in breach of the GDPR and Data Protection Act 2018 (DPA). He also alleged that the publication of confidential and sensitive information violated his constitutional right to privacy under the ECHR. Negligence, breach of duty and breach of confidence were also alleged against the defendant in the manner it used the plaintiff’s personal data. He claimed damages, including nonmaterial damages for wrongful invasion and breach of his right to privacy. Mr McCabe also sought an order under Section 117 of the DPA directing the defendant to comply with his subject access request and furnish him with a copy of his personal data, including a copy of the Recording. McCabe also sought an order, if necessary, that the former employer account to him for the loss, erasure or destruction of the recording.

Decision

The Court referred to the Circuit Court decision of Kaminski v Ballymaguire

Foods Limited [2023] IECC 5, which set out the legislative provisions of the GDPR and the DPA, which were of particular relevance to this case. Those provisions included the principles relating to the processing of personal data under Article 5(1) of the GDPR and the lawfulness of processing of personal data under Article 6 of the GPDR. The Court also referred to Article 82, which provides for the right to compensation for material or non-material damage suffered by a data subject because of an infringement of the GDPR.

The Court accepted that, whilst the recording was not relied on by the employer in the disciplinary process which resulted in the employee’s dismissal, there was a sufficient causal connection between the act of the Recording and the dismissal itself. Therefore, the Court directed the defendant to account to the plaintiff for the loss, erasure or destruction of the Recording and provide sworn testimony of its current status. The Court expressed concern about the appropriate provision of information to the plaintiff, as the data subject, regarding the destruction or availability of the Recording because it may have assisted his WRC appeal or related litigation.

The Court noted that Mr McCabe enjoyed a right to data collected by his employer which is closely connected to his role. For this infringement, the Court made an award of compensation for the damage suffered by the plaintiff under section 117(4)(b) of the DPA in the sum of €5,500, together with costs. This re-enforces the position that compensation for non-material damages in data protection claims will be modest.

The Court did not uphold the claims of breach of privacy, negligence, breach of duty, and breach of confidence.

Learning points for employers

Employee monitoring, whether covertly or otherwise, is becoming increasingly common in the workplace. Employers must be aware of theirobligations under the DPA and GDPR in respect of processing and storing employee data, as well as the rights of data subjects to access that data.

Currently to be eligible for Statutory Sick Pay an employee must have average weekly earnings at or above the Lower Earnings Limit (currently £123 per week). Those that are eligible are only paid from their fourth day of sickness absence.

In Great Britain, the Government has stated that they will remove the requirement to earn at or above the Lower Earnings Limit before being entitled to SSP. The Government also plans to remove the waiting days meaning everyone will be eligible for SSP from the first day of sickness absence. Furthermore, enforcement and resolution of SSP disputes will be included within a newly established Fair Work Agency. See Factsheet summarizing the changes.

Having said that historically Northern Ireland has maintained parity with the rest of the UK. On 30 October 2024, the Northern Ireland Department for Communities (who has responsibility for SSP) published a link to the DWP’s Consultation on it’s webpage and is actively encouraging Northern Ireland stakeholders to respond.

This is perhaps a sign that we will maintain that parity approach. We would encourage members to respond and also start planning for a change. We will keep Members updated with any further developments.

About Us

Employers Federation is a not-for-profit Organisation which has been in existence in Northern Ireland for over 100 years. We solely represent employers, predominantly in the private sector, although we also have some charitable bodies within the Membership.

We advise across an extensive range of industries including engineering, communications, fintech, technology and food. The employers we represent range in size from small to some of the largest private sector employers in Northern Ireland.

We welcome the opportunity to respond to this Consultation.

Our Response

As an Organisation we recognise the scale of domestic abuse in Northern Ireland and the need for a co-ordinated approach across government, voluntary bodies and wider society to tackle it. We also recognise that the workplace plays a key role in supporting employees. Indeed, we recently worked with Women’s Aid to help educate businesses about domestic abuse, its impact, and what they can do to support employees in the workplace.

As an employers’ Organisation, we believe it is important that the law is clear, easily understood, and that there are user friendly guides with the purpose of educating, supporting and helping employers understand their legal obligations. It is against that background that we make the following comments which we hope will be considered constructively.

Additional points to supplement the responses to the questions

Domestic violence / safe leave was one of the last Bills passed by the Executive prior to Stormont collapsing in 2022. As such we understand that it was introduced as a framework Bill and are disappointed that some of the new rights were not fully consulted on and/or costed out in a full impact assessment prior to the Bill being passed.

As stated above, Employers Federation fully supports the need for action to be taken in this area and has set out employers’ main concerns are around:

Who it applies to

Regulations should clearly specify exactly who, and in what circumstances they, will qualify for paid safe leave. We are concerned that the current proposals seem to go further than simply the person who is experiencing domestic abuse.

Payment

Employers are disappointed that they will have to fund the leave and that costs cannot be set up as a statutory payment by the Department.

We ask that this is kept under review and that the Department consider funding to support employers particularly in the SME sector. For this reason we believe that pay should be defined as basic pay only. This will avoid litigation around what is normal and also limit, to some extent, the financial exposure to the employer.

Notice

It is important that there is an obligation on the employee to notify the employer that they are taking the time off preferably before they are due to start work or as soon as possible thereafter. That notification should also state how long they expect they will be off for.

Whilst the proposal is that employers are not entitled to request evidence, it should be made clear what the employer can ask to clarify that the employee has the right to paid

time off, to establish how much time is required and ask questions around he ‘issues’ that the employee will be dealing with during the time off.

Record Keeping

This requires Guidance in terms of:

How the employer might record safe leave on their systems
How to record on pay slip (as the abuser may have access to the employee’s payslip)
What records the employer will have to keep
How the Department intends to monitor and review whether the Regulations are working effectively

Handling potential abuse of the right to leave and pay

In vast majority of cases employers recognise that this right will only be used in genuine circumstances. However, given that it is fully paid, and the notice requirements are light, it gives rise to the potential for abuse.

Employers need to understand what they can, and indeed that they are able to, ask some questions around the taking of the leave and right to pay, to ensure that the eligibility conditions are met.

There should be no liability on employers if they have a reason to investigate the circumstances surrounding the leave, if they suspect that its being misused. Any Guidance should contain appropriate examples of what the employer can do in these circumstances and raise awareness that abuse or misuse of the right could lead the employee open to disciplinary action.

Support and Guidance

We recommend that the Department or another body (such as the Labour Relations Agency or Equality Commission) produce clear Guidance on what employers can do in various situations.

This could include worked examples and should focus on what an employer should do, not on what an employer should not do.

It is important that employers understand what they can ask without being accused of discrimination or some other breach of the Regulations.

For example, we suggest that Guidance contain cases studies and template documents

to set out:

What (if anything) should be put in writing by the employee either before or after the
taking of the leave
How employers should respond to requests and notifications
How the leave could be recorded on internal systems
How pay should be classified on pay slips
What can be discussed on a return to work
Questions that are appropriate to ask and those which are not
Employers Federation EF Consultation Response to Domestic Abuse Safe Leave
Examples of when the right to paid time off could be refused
Sample Domestic Abuse Policy

Dealing with difficult situations

The Department should provide examples in the Guidance on how a manager should respond to an employee who tells them they are experiencing abuse.

Additionally, Guidance should cover what should occur if a person accused of being the abuser is employed. We have knowledge of situations where an organisation employs both the abuse employee and the abuser; Guidance is necessary to help employers understand what they should do in such circumstances.

Conclusion

The statistics surrounding abuse in Northern Ireland are shocking. Our comments above are meant to be constructive and ensure the smooth operation of this new right and avoid ambiguity to limit litigation arising over the interpretation. We are happy to expand on our Response should the Department believe that to be helpful.

27 September 2024

About Us

Employers Federation (previously known as the Engineering Employers Federation Northern Ireland) is a not-for-profit Organisation which has been in existence in Northern Ireland for over 100 years. We solely represent employers, predominantly in the private sector, although we also have some charitable bodies within the Membership.

We have consulted with a range of member companies about our response including through an in person Briefing Session, collaborating with Manufacturing NI and at our Annual Conference with Departmental Officials. This response reflects the opinions we have gathered. In compiling our response, we have also liaised with our sister Organisation MAKE UK.

We welcome the opportunity to respond to this Consultation.

Executive Summary

Employers Federation Members recognise that employment laws in Northern Ireland are long overdue a fundamental review and need an assessment of whether they are fit for purpose in the modern workplace and economy. We therefore welcome this Consultation and are fully supportive of the Minister’s Economic Vision to increase the number of good jobs and increase productivity across the regions. Many of our Members already have in place rights and benefits above those proposed in this Consultation and take pride in being a good place to work.

We question if legislation is the appropriate vehicle for all the change contained in the proposals and have highlighted areas where we believe that aims could be better achieved through Guidance or Codes. We are cognisance that the Minister’s Action Plan also includes working with the LRA to develop a Good Work Charter as part of the Department’s ’soft’ approach to furthering the objective of increasing the number of persons in good jobs.

We recognise that employment law is devolved in Northern Ireland which provides the opportunity to implement laws appropriate for our jurisdiction. However we believe that we should only do so when it is right to depart. We welcome several of the proposed changes to employment law that would achieve parity with employment laws in Great Britain. For example, for businesses working across both Northern Ireland and Great Britain having the same rules on matters affecting payroll eases the administrative and cost burden on businesses.

We fully support the aim of removing poor business practices and promoting good working practices between employers and employees. Members are broadly supportive of the proposals in Theme A (Terms of Employment), Theme B (Pay and Benefits) and Theme D (Work Life Balance) and believe that further engagement and discussion needs to take place on some of the Departments proposals in Theme C (Voice and Representation).

However, we believe it is vital that Northern Ireland remains seen as a good place to do business and avoids excessive bureaucracy so that we can continue to attract investment and growth.

Whilst we also appreciate the limited timescale left by the Executive’s shorter mandate, we are disappointed that such a fundamental review was launched over the summer months which made has made full engagement with stakeholders difficult. The time pressure on the Department should not override the need to ensure that employers, and other stakeholders are properly consulted in some of the detail of these new rights.

Implementing any change

We recognise that not all proposals will be brought forward within this current mandate but employers remain concerned about the scale and scope of the Consultation.

In order to help employers prepare for the introduction of new rights, we ask the Department, when responding, to clearly identify the proposals they intend to take forward in this mandate and provide a provisional timetable for implementation. We understand that some aspects (such as pay slips) only require secondary legalisation which may permit changes to be implemented quickly. Whilst the change in law may happen quickly, business will need time to prepare and ensure for example, the payroll function can change in time to comply with new laws. Therefore, we ask that in responding the Department provide a provisional timetable.

We also recommend that further areas for Consultation are identified clearly.

Employers have also asked that measures are brought in a staggered manner to allow change to bed down. New policies may need to be introduced, and training completed so that employees and managers know how to respond.

Whilst we recognise there is limited time remaining in this mandate it is vital that in the implementation of any changes through the Employment Rights Bill the right balance is struck between support for employees and that flexibility for employers is maintained. The time pressure should not override the need to ensure that employers, and other stakeholders are properly consulted in some of the detail of these new rights.

Finally, employers are concerned about the potential cost burden of the total package of measures. We welcome some clarity, and hopefully some reassurance, from the Department about the funding of such changes, The Department’s Consultation on Domestic Abuse Safe Leave also closed on 27 September 2024. The potential uptake of this new right (and consequential cost) is unknown. That cost will be borne solely by employers; employers should not be asked to fund any other measures particularly at times when some of our Members are proposing redundancies.

We have set out our views and feedback to each of the Themes below and have not provided a response to each of the 190 questions. Where we could we have attempted to answer the questions under each heading.

THEME A: TERMS OF EMPLOYMENT

Zero-Hour Contracts

The proposal is to replace Zero Hours Contracts (ZHC) with contracts that provide flexibility and protect workers rights.

An outright ban is not supported but Members have no issue with a ban on exclusivity clauses when engaged on a ZHC. ZHC are often liked by younger employees who are filling gaps between studies, older employees and seasonal workers who wish to work as and when they choose. Any model should still permit this.

Care needs to be had in this area not to go to far and cause unintended consequences.

ZHCs changes won’t impact on most employers and we have only a limited number of Member Companies that use ZHC. For those that do, they are used to recruit flexibly and react changes in demand. For example, the ability of businesses such as in hospitality to support pre-Christmas increases in production, or food industries to flex. Therefore, it is important that the Department should not seek to end flexibility in zero hours contracts where there is a mutual benefit to the employer and employee in such an arrangement.

Prior to making any decision in respect of whether to introduce a ‘banded hours’ regime in Northern Ireland, we recommend that the Department engage with its counterparts in the Republic of Ireland (ROI). ROI introduced this right in 2018. We understand that the number of individuals exercising their rights under Section 18 of the Organisation of Working Time Act 1997 is lower than anticipated and implementation has been far from straightforward.

We are also aware that in GB the Government has decided not to implement The Workers (Predictable Terms and Conditions) Act 2023 that had been expected to come into force in September 2024. That Act would have given workers and agency workers the right to request more predictable terms and conditions of work but not a right to have a more predictable contract. We now expect that the GB Employment Bill (expected to be published imminently) will set out the position on ZHC and provide workers with a right to: a contract that reflects the number of hours they regularly work, based on a 12-week reference period; and reasonable notice of any change in shifts or working time, with compensation that is proportionate to the notice given for any shifts cancelled or curtailed. We recommend that the Department review those proposals before deciding the appropriate way forward in Northern Ireland.

Understanding Employment Status and addressing Bogus Self
Employment

This is an area that further consultation and engagement is required to understand what the issues /concerns with current position are and would any change address those
concerns.

However, it maybe that the Consultation is conflating two separate issues of: employment and bogus self-employment. We view them as two entirely different matters.

In terms of employment, it is recognized that the 3 categories of persons: employee, worker and self-employed cause difficulties in employment rights legislation particularly as the definition of what constitutes an employee varies across different laws.

Separately we have the growth in modern forms of employment including those engaged in digital platform working where persons are paid per gig. This form of working could be addressed along the lines proposed by the EU in its Digital Platform Directive which was passed by the EU earlier in 2024.

The added complexity recognised by the Consultation is that tax only has 2 categories: employees and self-employed. If the issue to be addressed is underpaying tax it maybe that can be addressed in a separate way. As tax is not a devolved matter, it can only be addressed in a UK-wide approach.

We do not find that bogus self-employment is a real issue amongst our membership. Most persons working as self-employed tend to be highly paid consultants who are choosing to work in that way and not lowly paid workers.

We appreciate that no system is ideal but given how established the 3 categories are believe it is appropriate to retain in the interim period. Any proposal to deviate from this would require a full in-depth consultation and proper impact assessment to identify unintended consequences. To work in practice any change would, in our view, have to Employers Federation EF Consultation Response to Good Jobs Employment Rights Bill be UK wide change and not limited to Northern Ireland. We are cognisance that creating a Single Status is also being considered by the Labour Government.

Dismissal and re-engagement

Regrettably the P&O fiasco cast a bad light on fire and re-hire when it was purely a case of fire and no rehire. P&O exploited a loophole in the law that allowed the company to escape liability on grounds of seafarer laws. These ‘bad facts’ should not be allowed to create ‘bad laws.’

In our experience dismissal and re-engagement is wholly the exception and not in anyway common practice. It is extremely rare for businesses to use the ‘fire and rehire’ tactics – which is a very emotive term. This is because it is only ever used as a last resort in negotiations over terms and conditions. Many businesses would not use it either on principle or because of the risk of unfair dismissal claims and significant reputational harm.

We are generally supportive of a Code or Guidance being produced that codifies the existing case law and is a proportionate response to this issue. We would be concerned that an outright ban would limit necessary flexibility for businesses or lead to unintended consequences (e.g. making a redundancy and subsequently wanting to rehire the employee due to improved company performance but being unable to do so under new regulations).

Redundancy Offence to Notify

Some Members have stated that overall responsibility should not rest with an individual but be a Company issue. They have suggested that introducing unlimited fines for directors, may disincentivise people joining Boards or may result in prohibitive insurance costs, or both. We recommend keeping the rules as they are or limiting liability to £5,000.

Written Statement of Particulars

For most employers this will not be a major issue, but we recommend that any change is notified to employers as early as possible so that they can amend their documentation and systems to ensure compliance with new laws.

Some Members have commented that with temporary staff, it is not always easy to set out set terms and conditions of employment until the contract has been going for a while and trends are established.

Agency Workers: Pay Between Assignments

We are not aware of the number of Pay between Assignment Contracts (PBA) in use in Northern Ireland. Our experience is that the number of PBA contacts has vastly diminished in Northern Ireland and most agency workers are engaged on parity contracts.

Again, it is important that any change is notified to employers as early as possible so that they can plan ahead for increased budget and ensure that they are acting in a compliant manner. There may also need to be a transitory period to phase out PBA contracts currently in place.

Key Information Document for Agency Workers

We have no issue with the proposals and recommend that any change is notified to employers as early as possible so that they can amend their documentation and systems to ensure compliance with new laws.

Employment Agency Inspectorate and Information Sharing

The Recruitment Agencies we have spoken with in our membership have no concerns with this proposal.

EAI Enforcement Powers

The Recruitment Agencies we have spoken with in our membership have no concerns with this proposal.

THEME B: PAY AND BENEFITS

Payslips

We have no concerns regarding the Department’s proposal to ensure all workers receive an itemised pay statement. We believe the overwhelming majority of workers already receive a pay slip even in the absence of an express statutory right.

Our Members are supportive of the Department’s aim to provide pay transparency so that employees understand how their pay is calculated and whether there are any mistakes with the pay that they have received. This will ensure any discrepancies or errors are resolved expediently which is beneficial to employee/employer relations.

Parity with Great Britain on this issue is very welcome as many businesses work across the UK and avail of payroll services that are UK wide. It can be difficult, and expensive for businesses if there is deviation in Northern Ireland as it can require a bespoke payroll system to be set up that can be costly for the business.

Members have asked that any change is notified to employers as early as possible so that they can amend their documentation and systems to ensure compliance with new laws.

Holiday Pay Reference Period

Members very much welcome the reference period being a period of 12 months and would ask that it is a fixed reference period rather than a rolling one as this would make it easier for the employer to calculate holiday entitlement.

A fixed reference period also allows for a fixed pot of holiday entitlement to be identified at the beginning of the leave year, which is helpful.

The general law on holiday pay and entitlement is extremely complex and challenging for both employers and workers to understand. Members are bitterly disappointed that the Department has not taken the opportunity to improve this area particularly given the huge cost of getting it wrong for business in Northern Ireland as we do not currently have the 2 years back stop that is in place in GB.

Members have asked the Department to consider introducing this 2 year back stop.

Members have also requested that calculating holiday pay for part year, permanent workers is clarified as the current system is grossly unfair.

We recommend that a further review should also include:

Creating a single 5.6-week holiday entitlement by merging the four-week
entitlement drawn from the Working Time Directive and the additional 1.6-week
entitlement enshrined in the Working Time Regulations – and clarifying the rights
and benefits attached to this – is an important part of achieving simplification
and clarification.
Consider calculating holiday pay on the basis of 5.6 weeks of statutory annual
leave at basic pay
Confirm that rolled-up holiday pay is lawful – particularly for part-time and
irregular hours workers
Permit the calculation of holiday using the formula of 12.07% would ensure
consistency and simplicity from an employer’s perspective, reflecting the
statutory annual leave entitlement.

Record Keeping Requirements

We welcome the fact that the Department is not making any proposals in respect of record keeping requirements under the Working Time (Northern Ireland) 2016 but is rather seeking views of stakeholders in respect of how the current rights are working in practice and if there is a need for reform.

At present, employers in Northern Ireland are required to keep records in respect of the 48 hours weekly opt out, hours of work for night working and young working but not for rest breaks or daily hours worked.

There are more onerous obligations in ROI where employers must keep detailed records of the hours worked each day and week as well as a record of any leave, rest periods and breaks employees take. We understand that employers struggle with these onerous obligations in practice and believe they are overly burdensome.

In GB, the Government has confirmed that businesses do not have to keep detailed records if they can demonstrate adequate compliance with WTR in other ways.

We submit that the existing requirements are working well in practice. Anecdotally we are told that there are little/no disputes in the workplace whereby employees allege that they have not received adequate rest breaks etc. We believe additional reporting obligations are unnecessary and will compound the difficulties being experienced by employers at a time of significant change in respect other changes which are perhaps more beneficial or needed.

Our Members primarily find limited record-keeping under the Regulations helpful where there is a meaningful impact on employees’ pay. Beyond pay-related reasons, there are few areas where Members have identified a need to keep extensive records under the Regulations.

There is a strong element of trust between the employer and employee in relation to working hours, particularly after the Covid-19 pandemic and the subsequent changes in working patterns and preferences across industry. Employers may often rely on relationships between line managers and employees to foster this trust and encourage employees to work their expected hours and complete tasks without the need to have extensive formal recording of working hours in place across the workforce.

Right to Disconnect

The Right to Disconnect can only be considered as part of the wider debate on flexible working. Post covid we have seen a huge growth in flexible working both in terms of the hours worked and the locations people work from.

To accommodate this flexibility means that not everyone works 9-5pm. Some employees choose to work outside of normal hours, whilst other employees like to split their daily hours to suit childcare needs, for example for school pickups etc and therefore some employees working hours are not standard.

Additionally, some of our Members work across different time zones and it is important that these persons can connect to their teams and customers in different time zones. Any provision must be able to accommodate this.

The Working Time Regulations already govern working hours, rest breaks and rest periods. We do not see a need for further laws in this area. However, Members are generally supportive of Guidance / Code that sets out good practice but recognises that flexibility is required particularly for those groups who work various work patterns and/or across different jurisdictions.

For some Members, they have processes in place (both formal and informal) where employees’ time outside of working hours is protected. This might be through team leaders ensuring that employees are able to switch off outside of work and respect boundaries in terms of communications etc, or a more general expectation that if somebody is out of the office then this is respected.

Members noted that there will be exceptional circumstances where it is appropriate to communicate with employees or ask for specific tasks to be completed, for example roles that are understood to be performing business-critical activity or would be covered by a business continuity plan. The importance of everybody understanding this and which roles are important for out-of-hours contact was emphasized.

A question that was highlighted to us related to the definition of ‘disconnecting’ and how being ‘connected’ and ‘working’ would be differentiated.

THEME C: VOICE AND REPRESENTATION

Our Members understand the importance of providing employees with a collective voice in the workplace and that this must be a voice that can influence decision making.

We have in our Membership businesses that recognise trade unions in their workplace for the purposes of collective bargaining and enjoy strong positive workplace relationship with those trade unions.

We also have Members that are not unionised who have very effective alternative mechanisms in place that provides employees with a strong collective voice. These industries tend to be the modern growth industry with a younger workforce profile. Statistics from the trade unions show around three-quarters (75%) of trade union Members are aged 35 or over.

In considering policy, we recommend that the Department bear in mind these other ways of providing an effective collective voice in the workplace.

Furthermore, the laws in Northern Ireland have always fostered a co-operative working relationships between employers and unions. For example, Northern Ireland has not implemented counterpart measures such as GB Trade Union Act 2016 nor have we considered other measures such as minimum service levels.

We recognise that the Minister has set out his priority is to strengthen the trade union movement. If that is for the purpose of increasing the number of persons in good jobs then we are unsure how some of the proposals in this section will achieve this.

If the aim is to ensure employees have an effective mechanism to have a voice in the workplace, then again we do not see how some of the proposals for expansion of trade union rights into smaller businesses, would enhance job creation or improve the quality of jobs in Northern Ireland.

We have read and endorse the views set out in the joint letter to the Minister from those employer organisations that are part of the Engagement Forum i.e. The dynamics of
organisational cultures are sensitive and business places high importance on preserving a positive and collaborative work environment. In many larger businesses, trade unions currently fulfil their advocacy role without compromising the core values and organisational culture, however there is a strong resistance to the introduction of any measures that would upset this balance. There is also strong resistance, especially amongst medium and smaller businesses, to any measure of compulsion to accept trade union involvement below the current threshold of 21 employees.

Members also believe that the law can be a very blunt instrument to effect change in this area and that the focus should be on training and building positive working relations with the unions and employers.

Workplace Access

As stated above, our Members who recognise trade unions have collective agreements in place that govern matters such as workplace access. The proposal around workplace represents a significant change in culture and is resisted by our Members. In the modern day, physical access to workplaces is not generally required for the union to communicate with Members. Indeed much communication from unions takes place virtually through whatsapp, social media, instant messaging and unions are very adept at this form of communication.

In terms of physical access to premises, employers would decline access for reasons that includes to avoid operational disruption. Co-ordinating union visits without disrupting daily operations is very difficult, especially in industries with continuous workflows or strict schedules.

This issue of trade unions to access private employers’ workplaces is a very complex issue and more needs to be understood in terms of what is proposed. For example, leaving aside the risk of legal disputes if access is denied or if the process is not handled correctly (and the proposal contains no information on enforcement) a general right of access to private space could potentially infringe Article 8 of the European Convention on Human Rights (ECHR) which protects the right to respect for private and family life.

Employees also have the right to choose to join a union or not and it is important to balance the interests of unionised and non-unionised employees.

We do not believe that equivalent rights in place in New Zealand should be replicated in Northern Ireland.

Collective Bargaining: Recognition

The proposal to lower the threshold for trade union recognition from 21 to 11 would only capture 5% more businesses and would seem a disproportionate impact for these smaller businesses. We anticipate it may be difficult for small firms to meet the cost of paid time off for trade union duties. Smaller firms also find it easier to deal direct with employees rather than through a third party.

We are of the strong view that the threshold should be maintained at 21.

Introduction of collective sectoral bargaining

We are aware that the Labour Government is considering process of sectoral collective bargaining to determine employee pay and conditions.

We have also experience of working with national agreements in the 1980’s when the economy and businesses operated in very different environment. Having said that these Agreements were extremely difficult to operate under.

We believe that this issue requires further in-depth consultation particularly as we are aware of the lack of success of similar initiatives in some countries and understand that the Fair Pay Agreements in New Zealand were repealed. We are of the view that given the wide variations in industries such as engineering, manufacturing it could be difficult to define who was covered in the ‘sectoral group’ and there is insufficient similarity between industries to make this workable in practice.

Many of our Members value constructive relationships with their trade unions and company-level collective bargaining remains a feature of many manufacturing workplaces. Our Members are keen to preserve the freedom of employers to negotiate on pay and conditions relevant to their workplace to according to their individual business.

Balloting & Notice

Members object to the proposed reduction to notice from 7 to 5 days which is already a very tight time frame. It is unclear if this is calendar (and we assume it is) or working days. In any event, we do not see how reducing the notice period will further the aim of increasing the number of good jobs; there is no rationale provided behind the proposal, other than the trade unions have requested it.

Electronic Balloting

Our Members have no objections to a move to electronic balloting.

However, the Independent Scrutineer plays an important role in the balloting process, and it is vital that they are retained whether the ballot is completed by post or electronically. Given the huge impact to business and employees when industrial action is taken, the independent scrutineer is crucial to ensure transparency and compliance with legal provisions. For example, they could check that all in the bargaining unit have been sent a ballot, check the wording of the ballot, count the responses and do a report confirming if everything was conducted in accordance with the law.

We do not see how removing the need for scrutineer would contribute to the overall aim of increasing the number of persons in good jobs.

Protection for Representatives

We believe that the current laws adequately protect trade union officials with the exception of one area (see below). The law as it currently stands provides for an application of interim relief in circumstances that they were dismissed as they:

carried out duties as a health and safety representative or a pension scheme
trustee
acted as, or was, a candidate to be an employee representative in collective
redundancy or TUPE
took part in duties or activities as a trade union representative
took part in activities relating to trade union recognition
asked for, or acted as, a companion in a disciplinary or grievance meeting

Protection for Employees taking part in Industrial Action

Employers recognise that employers have right to strike and that right is qualified, not absolute.

We believe that the current laws of prohibiting dismissal of employees for at least first 12 weeks of any industrial action, is sufficient. Twelve weeks is a significant period of time for industrial action to occur. Generally during this period the business will be exploring ways to resolve the issues with the union including through the assistance of the Labour Relations Agency. By that stage, if agreement has not been reached then it is unlikely to be reached and the parties will have reached a stalemate.

Our Members are against any proposal to extend this period beyond 12 weeks and if anything, we suggest that it should be shortened and capped at 8 weeks. Any extension is only likely to detrimentally impact working relations and negatively impact the business.

Furthermore it is very difficult for trade union Members to break the strike line and attend the workplace even if during the course of the industrial action they are of the view that the offer being made can be accepted. Some trade union Members feel compelled to continue to strike as the union has not accepted the offers.

However, we do recognise that the law needs amending to close the loophole identified by the Supreme Court in case of Secretary of State for Business and Trade v Mercer [2024] UKSC 12. We recommend that any change is only implemented following a separate consultation on this as it raises sensitive policy questions with important practical implications.

Facilitating Productive Workplace Relationships

The LRA has a Code on Disclosure of information to trade unions for collective bargaining purposes and there are laws and case law that govern the collective
bargaining process. These prevent direct offers being made to employees until the collective process is exhausted.

Our Members are of the view that Guidance, rather than a Code, that sets out principles of behaviour would be welcome.

Any Guidance should signpost the stage when parties have exhausted the process and negotiations are at an end.

The proposal for a Code provides no information on remedies available if a party believes that the Code has been breached. Our Members are concerned that this could add a further layer of bureaucracy and litigation focussing on whether any Code was breached and applying for sanctions or penalties rather than resolving the dispute. Particularly as our reading of the Code is that the principles of good faith contained in the New Zealand Code are in parts vague and open to different interpretation by employers and employees. This can create confusion during negotiations and workplace interactions and lead to satellite type litigation.

If the aim is to foster better working relations then we believe more should ground work should also be done in the area of training and promoting good practice with a focus on how to conduct good negotiations.

Information and Consultation: Definitions & Thresholds

Our Members are of the view that the definition ‘undertaking should be retained and not replaced with establishment. This is particularly so as the word ‘establishment’ is somewhat lost in the context of digital remote working. Changing it could result in ICE type agreements being made for a very small number of persons and require management time away when there are other effective ways of engaging.

Unanimously all who engaged with us stated that a reduction to the threshold required from 10% to 2% was far too low. This would mean, for example, that in a group of 50 employees an agreement would be put in place if 1 person.

As we stated above, we understand the importance of providing employees with a collective voice that can influence. However this would seem a very blunt mechanism to achieve that aim and could have unintended consequences.

Transfer of Undertakings (Protection of Employment) Regulations

We welcome the inclusion of TUPE in the Consultation and recommend that all the changes introduced in GB in 2014 including (but not limited to) the micro business exception are also introduced in Northern Ireland.

We agree that the Department should allow direct consultation with employees on TUPE transfers for all small businesses and businesses of any size where fewer than 10 employees are transferring.

We have been involved in cases involving split contracts which cause real legal and practical difficulties both for the employee concerned and the business. Employees may find themselves working for multiple employers who might provide conflicting instructions on where and when they should be working. This can also complicate their status and benefits that they are entitled to under the contact.

Members also support the law confirming that TUPE only applies to employees and does not extend to workers.

Public Interest Disclosure (Whistleblowing): Annual Duty to Report

Our Members have no views on this.

THEME D: WORK LIFE BALANCE

Theme D principally seeks to bring Northern Ireland in line with the changes introduced in Great Britain over last 2 years to strengthen the protection around ‘work-life balance’. Our Members support the principle that employees who enjoy a positive work life balance are more likely to be happy, engaged workers and more productive.

Employers have some concerns about the timing of the introduction of these rights as well as some of the finer details in respect to how these additional rights will operate.

Employers therefore ask that detailed and timely guidance is provided in respect of each of the statutory right being introduced and that the implementation dates are staggered, with generous lead in times, to ensure employers have sufficient time to prepare and put the necessary systems in place. This will help avoid disputes or litigation arising over a lack of clarity and a nervousness about making a mistake in these sensitive circumstances.

To achieve the Department’s aim of creating more good jobs, it is important that the Department invest and provide funding for line managers training. Outside of the technical skills gap, we hear a lot from Members that they struggle with people/team management skills, so there’s a broader point in policy that there needs to be better support for leadership and management training.

Flexible Working

Our Members are committed to offering flexible working where this is feasible and are broadly supportive of the overall policy aims in relation to flexible working.

There are certain industries such as manufacturing it is more difficult to accommodate requests as there are limited in their ability to offer all forms of flexibility to all categories of worker due to the requirements of the production line. Production roles can rarely be carried out at home as they involve the use of equipment that is only available at the employer’s premises. In addition, offering flexibility as to hours can be challenging in production roles as it is often the case that all Members of a production line need to be present for a full shift in order for all tasks to be completed. That said, the shift system may already offer employees some degree of choice as to when they work.

Introducing a statutory day 1 right will contribute to a growing perception amongst individuals that they are entitled to work flexibly (as opposed to just being entitled to make a request). This has an employee relations impact, as expectations of the ability to work flexibly in some roles may be unrealistic. Member companies report that this expectation can impact on the productiveness of a discussion about a flexible working request and result in disappointment and low morale if the request is ultimately refused. Any guidance should however make clear that it is a right to request and not to have.

Furthermore, many member companies place high value on new employees working their probationary period before being able to request flexible working. This is to ensure that they receive the most out of the training provided during the probationary period.

The same applies to home and hybrid working; many also felt that it is important in certain roles for the employee to be present in the workplace during the probationary period, to allow for effective integration into their team and to make it easier to pick up on and deal with any problems. Some informal aspects of training on the job can be lost if the new starter is not in the same room as their team.

If the right to request flexible working from the first day of employment is introduced, it is important that additional business reasons are included to mitigate some of the impacts identified above. In particular the practical concerns employers have about the importance of the first months of the employee’s employment for training, induction and embedding the employee within the organisation. Two possible reasons are:

It is too early to determine the impact the request will have on the business, other staff,
or the performance of the employee;
Flexible working will have an adverse impact on the effectiveness of the employee’s
induction, training and/or probationary period.

We also received feedback from our sister organisation Make UK from some of their Member Companies, that there were some circumstances where they did not know which of the 8 business reasons properly reflected their grounds for needing to reject a request. For example, defence manufacturers working on highly confidential and sensitive information that requires security clearance cannot take their work off- site, so are unable to permit homeworking in certain roles. When refusing requests for home working, these companies have cited the “adverse impact on performance” business reason, but security concerns do not neatly fall within any of the existing business reasons. This difficulty highlights that there is a need to ensure that the business reasons cover all sectors and sub- sectors of business.

Carer’s Leave

Our Members appreciate the difficulties incurred by working carers and acknowledge the invaluable role these individuals play not only in the workplace but in their family situations and society in general. Again, Members support, in principle, the implementation of a statutory right for a carers to take time off work to provide care. This Employers Federation EF Consultation Response to Good Jobs Employment Rights Bill right would sit alongside existing rights for flexible working, emergency time off for
dependants as well as statutory annual leave entitlements.

Members seek reassurance that adequate guidance will be provided regarding the type of situations that it envisages carers leave to be taken for (distinct from the situations covering, for example, emergency time off for dependants leave) and if there are circumstances when it may be appropriate to seek evidence regarding entitlement and the care being provided.

Whilst we appreciate that the proposed right is currently unpaid, If it is to becomes paid leave, this must be a statutory payment and not be a cost to be borne by businesses. Members are opposed to any move towards employers having to bear the cost of it. We suspect providing paid leave maybe difficult particularly if carers leave is permitted to be taken in periods less than a day.

Additionally, employers ask that there is a requirement for the employee to provide sufficient notice (where possible) when seeking carers leave. The proposed right is not intended to duplicate the existing right of time off for dependants leave which covers emergency situations. It is therefore likely that carers leave will involve appointments /arrangements which are scheduled in advance or more routine. As such, it will not be unreasonable to ask employees to provide notice in these situations. In most cases we anticipate periods of a day or half day will be requested. On the Department’s proposal, this would provide very short notice for businesses of between 1-2 days to take the leave. Given that these are likely to be set appointments, we believe a period of 7 days is appropriate unless that is not reasonable to provide that notice in the circumstances. In circumstances where it is not reasonable to provide 7 day’s notice, then it should be at least double the length of time off being sought.

Neonatal Leave and Pay

Our Members are extremely supportive of the proposed right to Neonatal Leave and Pay for those individuals whose babies are placed in neonatal care following birth.

Employers understand the trauma that such situations can cause employees and the significant impact that it can have on family life as well as how an employee spends their maternity/paternity leave.

Employers are committed to ensuring that they do the right thing for their employees who need to exercise their right to neonatal leave and pay. Given the sensitive nature surrounding the entitlement of the right, and the emotional and vulnerable time in an employee’s life, employers require clear guidance as to how they can raise issues regarding evidence and notice of entitlement in a sympathetic and safe way. Employers are concerned that lack of clarity in this area may potentially lead to complaints of discrimination and may damage the employment relationship.

Protection from redundancy: Pregnancy and Family leave

Our Members are cognisant of the difficulties some employees in Northern Ireland have experienced as a result of taking maternity leave. Maternity leave is a precious time in a mother’s life to enable her to bond with her new baby as well as recover from pregnancy and birth. It is therefore vital that mothers can enjoy that period of leave without the fear and worry of it adversely affecting their employment or career opportunities.

Employers support protections that would support mothers returning to the workplace. However employers are concerned that extending the period of such protection has the potential to cause adverse industrial relationship issues where other employees believe they are being treated less favourably.

Employers have also raised concerns regarding the proposal to extend redundancy protection to employees who have availed of 6 weeks Share Parental leave. Employers believe this is a relatively short period of leave to attract such preferential treatment in a redundancy situation and believes this potentially could be open to abuse, particularly in collective redundancy situations. There is also the concern about how employer’s manage the potential competing rights that the additional protection will bring to those availing of Maternity leave, Paternity leave and Shared Parental leave.

Should the Department be steadfast with their proposal, then Members ask for detailed guidance on how to manage these issues.

Paternity Leave

Members in the main support the proposals in relation to statutory paternity leave. However they believe the current notice requirements are working well in practice and do not present any difficulties for employees exercising their right to take the leave. Members prefer that the notice requirements for maternity leave, paternity leave, shared parental leave etc are the same which makes it easier for businesses to manage in the workplace.

Other matters not included in Consultation

Whilst we understand that monitoring is not the responsibility of the Department of Economy, our Members has asked us to impress that they find the current legal requirements for monitoring to be outdated and not fit for purposes in Northern Ireland today. The Questions asked do not allow for responses that accurately reflect the composition of workplaces. In some instances, they force businesses to categorise a person as being perceived as one community or another when in reality they are a foreign national and not perceived as either.

As stated above businesses ask that all the TUPE changes introduced in GB to date are also brought into effect here.

Holiday pay is an issue that takes up a lot of time to calculate and the cost of getting it wrong can be very high. Businesses have asked this area to be explored in depth and the Department consider implementing the 2 year back stop.

Apprenticeship Levy is an issue that has vexed businesses UK wide and we understand it is being reformed by the Labour Government. We are unclear how that reform will impact Northern Ireland. Many businesses currently feel they are contributing significantly to the levy but are not fully benefiting from it. Reports indicate that Northern Ireland companies are “missing out” and some businesses have expressed frustration over the complexity of accessing the funds for training.

Reducing the collective consultation period from 90 to 45 days. It is currently 90- days in Northern Ireland, when employers plan to make 100 or more redundancies during which time dismissals cannot take effect. In GB, the period is 45 days and in ROI the period is 30 days. We have found that the 90-day period is excessive, and unnecessarily elongates the decision making when both sides recognise that consultation has been exhausted. This often leads to anxiety among employees, as they may be left in limbo about their job security for too long and hinders businesses moving forward to rebuild workplace relations following the departure of employees.

Conclusion

The is a monumental Consultation and the Minister has described the proposed Employment Rights Bill as landmark.

The Department is also working on the implementation of the Domestic Abuse Safe Leave provisions and the extension to the Statutory Parental Bereavement Leave and Pay to provide a Day 1 right to pay and extend the provisions to miscarriage.

In addition, the Executive Office has recently completed a call for evidence on a review of the discrimination laws so change could be forthcoming in that area.

The Department of the Communities has stated that the gender pay gap reporting rules will be brought into force in due course.

All these potential legal changes can create challenges for businesses, particularly small and medium-sized enterprises (SMEs). Undoubtedly businesses will have to invest in training and audits to ensure compliance with any new measures and laws.

For those laws that are bespoke for Northern Ireland we will not have the benefit of case law and rulings from GB to aid the interpretation.

In considering the way forward we urge the Department to keep regulations as clear and straightforward as possible. We recommend that clear guidelines and resources are also produced by the Department to aid in this process.

We also recommend allowing time for businesses to adjust to new regulations through phased implementation and clear signposting as to when changes are likely to occur this will help minimise disruption and provide a smoother transition. The Department should also consider offering training and resources to help businesses.

We welcome the opportunity to engage with the Department and/or the Committee for the Economy on these proposals and trust that you find our comments above constructive.

For further information, contact:
Michelle McGinley, Director of Legal & Policy
Tel: 02890 595050
Email: michelle@eefni.org
Legal Team
info@eefni.org
Website: www.employersfederation.org

30 September 2024

Our annual Employment Law & HR Conference was held on 18 September 2024 at the Crowne Plaza, Belfast and once again was a sold-out event.

The return of Stormont, the new Labour Government, and the ongoing public consultation into Domestic Abuse Safe Leave and the Good Jobs – Employment Rights consultation, meant there was a lot to talk about.

As always, delegates heard from the Legal Team as well as a number of guest speakers throughout the day.

What did we cover?

Top Employment Cases of the Year
Kathryn O’Lone of Employers Federation delved into the most impactful employment law cases of 2024, including three from the Supreme Court. These insights provide HR professionals with valuable and practical perspectives on how these decisions may impact the workplace

Navigating the Disciplinary Process
Sara Plower of Employers Federation guided delegates through the more complex aspects of managing disciplinary processes, helping organisations to put themselves in the best position to defend possible unfair dismissal proceedings

AI in the Workplace
We were delighted to have Kathryn Harkin, Head of AI in FinTrU, share her expertise on the integration of AI in the workplace and HR processes. The lasting message was to remember the human remains responsible at all times. Additionally, we launched our AI Policy at the Conference, providing each delegate with a template to tailor for use in their business’s

Domestic Abuse & the Workplace
Sonya McMullan, Regional Services Manager for Women’s Aid Federation NI, discussed the critical role of employers in supporting employees’ experiencing domestic abuse. This profound session highlighted the resources available to both employers and employees. This was timely with the imminent introduction of the Domestic Abuse (Safe Leave) Act and the Executive office having launched their Ending Violence against Women and Girls Campaign on 16 September 2024

Top Discrimination Cases of the Year
Karen Moore of Employers Federation reviewed the most notable discrimination cases of the past 12 months, including a detailed exploration of the concept of “discrimination by ricochet.” Delegates were provided practical tips and recommendations to help ensure compliance with equality laws which can be an ever-changing and complex area of practice

Good Jobs Employment Rights Public Consultation
Colin Jack from the Department of Economy Northern Ireland provided an overview of the ongoing Public Consultation on the Good Jobs Employment Rights Bill, identifying the Department’s key priorities and encouraging active participation in the ongoing consultation

Panel Session
Our panel session is thoroughly embedded as a Conference favourite and, following an excellent 2 course lunch, delegates enjoyed listening to the perspectives of our panel members on the proposals contained in the Good Jobs Bill. Michelle McGinley of Employers Federation facilitated the discussion. The panel included Peter Bloch of Employers Federation, Patrick McAuley of Seagate Technology, Tracy Blacker of Almac and Barbara Henry of Caterpillar NI who each provided valuable insights. Patrick also wore the Over the Bloody Moon Menovest throughout the 45 minute session before giving feedback on the experience

Menopause in the Workplace
Karina Todd of Over the Bloody Moon addressed the challenges and support needed for employees experiencing menopause. The session also featured the innovative Menovest and her upcoming training programme with Employers Federation

Planning for the Future
We wrapped up with Michelle McGinley of Employers Federation offering strategies on how to prepare for forthcoming changes in employment laws

As always, throughout the day we gave away some fantastic prizes. Our Conference is a great networking event and plans are already underway for 2025.

Thank you once again to all who attended we really do value your support.

From 26 October 2024, the Worker Protection (Amendment of Equality Act 2010) Act 2023 places a new positive duty on employers in GB to take reasonable steps to prevent sexual harassment at work. All employers in GB must comply with the new duty irrespective of size. Whilst this positive duty does not apply in NI, the Guidance set out below is useful for employers in both jurisdictions.

Employers have for a long time been familiar with the reasonable steps defence to allegations of harassment. Whilst the language in the Act draws on this wording, there is now a real change of emphasis with employers required to be much more proactive and to take positive steps to prevent sexual harassment.

Accompanying this new law, the Equality and Human Rights Commission (EHRC) has published Sexual harassment and harassment at work: technical guidance. The Guidance covers the employer’s positive legal duty to take reasonable steps to prevent sexual harassment of its workers (the ‘preventative duty’) and sets out steps to take to avoid discrimination: These steps fall into 3 categories: those that must be taken; those that can be taken; and those that should or could be taken as matter of good practice.

Separate to the Guidance the EHRC has also published Employer 8-step guide: Preventing sexual harassment at work which is described further below.

Employer 8-Step Guidance

Develop an effective anti-harassment policy: Ensure your equal opportunities and Dignity at Work policies and procedures are up to date and have been communicated to everyone. Your policies should make clear that your organisation takes a zero-tolerance approach to all forms of harassment, including sexual harassment. The 8-step plan explains in detail what a ‘good’ policy will contain;
Engage your staff: you should conduct regular 1-2-1, staff surveys and exit interviews and use these to help understand where any potential issues lie;

Assess and take steps to reduce risk in your workplace: undertaking a risk assessment will help comply with the proactive duty.

You should try to anticipate scenarios in which your workers may be subject to sexual harassment in the course of employment and take pre-emptive action to prevent such harassment taking place.

Possible factors to consider include:

Where are the power imbalances?
Is there a lack of diversity in your workforce?
Is there job insecurity for a particular group or role?
Are staff working alone or at night?
Do your staff have customer-facing duties?
Are customers or staff drinking alcohol?
Are staff expected to attend external events, conferences or training?
Do staff socialise outside of work?
Do staff engage in crude or disrespectful behaviour at work?

Reporting: Consider using a reporting system that allows workers to raise issues and keep centralised, confidential records of all concerns both formal and informal;
Training: Provide specific training for managers to help them identify acts of harassment, what to do if they witness it and how to handle any concerns.

Ensure all employees know the standards expected of them via awareness training. Employees should not only be trained on what constitutes sexual harassment, but also on the steps they can take if they have any concerns about behaviours they are experiencing or have witnessed;

What to do when a harassment complaint is made: this includes acting immediately to resolve the complaint, taking into account how the worker wants it to be resolved; protecting the complainant from ongoing harassment and always communicate the outcome of the complaint and outline any appeals process to the complainant in a timely manner;
Dealing with harassment by third parties: Whilst not part of the legal obligation in GB (see below) this step specifically refers to industries where third-party harassment from customers is more likely and states that workers should also be trained on how to address these issues and employers should take steps to prevent it and have reporting mechanisms;
Monitor and evaluate your action: this includes reviewing complaints, surveys and policies, procedures and training regularly. It also recommends holding ‘lessons learned’ after any complaints of sexual harassment.

Other steps include ensuring your senior leadership team is fully engaged with the positive steps your organisation is taking. Consider also having Dignity at Work Advisors; workplace peers who are trained to provide support and guidance to employees who have a concern about workplace behaviours

Tribunal awards and other enforcement powers

Employment Tribunals in GB will have the power to uplift the compensation awarded in sexual harassment cases by up to 25% if they find that an employer has failed to comply. The EHRC also has broad enforcement powers, including powers to investigate and require an employer to enter into an agreement to take certain steps to prevent sexual harassment in exchange for the EHRC refraining from using its other powers.

Harassment by third parties

This is one area in which the law in NI and GB differs significantly.

In NI an employer is liable if it knows that an employee has been harassed (on any protected characteristic ground) in the course of their employment on at least two other occasions by a third party, and not taken reasonable steps to prevent it from happening to the employee again.

The Equality Act 2010 in GB does not contain a similar provision. However the EHRC’s updates to its technical Guidance state that ‘in addition to the prevention of worker-on-worker sexual harassment, the preventative duty includes a duty to prevent sexual harassment by third parties‘.

The EHRC’s Guidance and 8-step action plan therefore include a new duty to prevent harassment by third parties. The EHRC’s list of who can count as a third party is also broad; this could include customers, clients, service users, patients, friends and family of colleagues, delegates at a conference and/or members of the public.

This means that, as an employer, you should be considering the risk of your workers coming into contact with third parties and the likelihood of sexual harassment occurring in those situations, and then taking reasonable steps to prevent such harassment from occurring in those scenarios.

Conclusion

Although the wording of the duty is the same as the old reasonable steps defence, there is no doubt that this new preventative duty is more onerous. Employers will be expected to do much more to succeed in any statutory defence that they have taken all steps reasonably practicable to prevent the act or acts of a similar nature occurring. Up until now the detail of the steps that must be taken were provided for in case law; the EHRC Guidance and 8-step plan, demonstrates what can be expected.

As stated above this new duty applies in GB only and does not extend to NI as employment law is devolved here. At present we are unaware of any plans to introduce similar laws in NI, however the Guidance produced by the EHRC is useful across both jurisdictions.

The NI Executive Office (which has responsibility for discrimination matters) has recently completed a call for evidence on the differences in discrimination law between GB and NI this may be an area that is considered. Furthermore the Executive has recently published its draft Programme for Government 2024-2027 ‘Our Plan: Doing What Matters Most’ in which one of the immediate key priorities is Ending Violence against Women and Girls. Therefore this could well be an area considered.

On 12 September 2024, in the case of Tesco Stores Ltd v USDAW and Others [2024] UKSC 28, the UK Supreme Court unanimously allowed an appeal brought by USDAW (the Union) on behalf of employees and restored an injunction preventing Tesco from firing and rehiring employees for the specific purposes of depriving them of Retained Pay (RP) as it was agreed that RP was a permanent benefit.

The appeal raises fundamental questions about an employer’s right, under contract law, to terminate a contract of employment by giving notice and the remedies for breach of employment contract.

Background

RP was a financial contractual entitlement that was agreed between the Union and Tesco to be a permanent benefit.

In 2007, Tesco closed some Distribution Centres to incentivise existing employees to relocate. Tesco and the Union collectively agreed to provide RP to employees that agreed to relocate.

As this RP was agreed via a collective agreement, the right to RP was then incorporated into those employees’ contracts of employment as an express term.

The RP clause stated that RP would “remain a permanent feature” of an employee’s contractual entitlement, subject to certain qualifications.

A separate clause gave Tesco a contractual right to dismiss employees without cause, on notice.

In 2021, Tesco offered to buy out the right to RP. Tesco informed employees that, if they did not agree to the removal of the RP term, they would be dismissed and offered re-engagement on identical terms, but with no RP term

Some employees refused to accept the offer; the Union then successfully applied to the High Court for an injunction to restrain Tesco from terminating their employment for the purposes of removing their right to RP.

Tesco appealed to the Court of Appeal, who overturned the High Court’s decision to impose an injunction.

Supreme Court (SC)

The SC unanimously restored the injunction and, by virtue of doing so, have restrained Tesco from terminating employees for the purposes of removing their right to RP.

The SC held the employment contracts contained a term implied by fact meaning

Tesco’s right to terminate could not be exercised to deprive employees of their right to RP.

In arriving at that decision, the SC started by interpreting the express RP term.

The SC rejected Tesco’s argument that the RP term simply meant that the RP entitlement was only “permanent” for the contract duration and was subject to Tesco’s unqualified right to dismiss on notice.

The SC stated that such an interpretation would give no substance to the express promise that the entitlement is “permanent”. The correct interpretation of the RP clause was that it would continue for as long as the employee remained employed in the same role, subject only to the qualifications stated within the clause.

Indeed, the SC acknowledged that the right to RP was deprived of value if Tesco could at any time unilaterally terminate the employment; therefore, the right to dismiss was qualified by an implied term not to dismiss in a way that would deprive employees of the right to RP.

The SC found it ‘inconceivable’ that the parties’ objective mutual intention was that Tesco could unilaterally dismiss to deprive these employees of the right to RP.

Importantly, the SC noted that Tesco’s right to dismiss for any other reason was entirely unaffected by this implied term. The SC drew an analogy to employees with entitlement to Permanent Health Insurance (PHI) benefits and the implied term that employer was restrained from dismissing to deprive them of PHI.

On remedy, the SC recognised that an injunction would amount to indirect specific performance of Tesco’s obligation to continue to employ the employees on RP. Whilst the general rule is that specific performance will not be granted: (i) of an employment contract; or (ii) where damages are an adequate remedy, this was an exception to that rule. Here, the SC found that damages would be inadequate and, as there was no breakdown of trust and confidence between Tesco and the employees, the contract could continue. In those circumstances, the injunction was granted.

Commentary

This is a reminder that any contractual term is underpinned by implied obligations by law and fact. Here, the implied obligation that had arisen out of the facts was to not act in a way that deprived the employee of a benefit which they were entitled to. It demonstrates the willingness of the Supreme Court to stand back and assess the reality of the situation. Here it was ‘inconceivable’ that when RP was agreed that the parties intended that Tesco could unilaterally terminate their contracts at any time to deprive them of this permanent benefit to RP.

It is also a noteworthy development from the SC that by issuing the final injunction it was thereby preventing Tesco, a private sector employer, from dismissing an employee for an indefinite period if the purpose of the dismissal is to remove the RP benefit. It may well be the case that we will see more claims for specific performance in breach of contract claims with arguments being made that compensation is an inadequate remedy.

This is another case that casts a bad light on the use of fire and re-hire. This is so when both Northern Ireland and Great Britain are looking at strengthening the rights of workers that includes curtailing the use of fire and re-hire.

Judgments from the Supreme Court (SC) are like buses – you wait for one, and then two come along at once. On 16 September 2024, in HMRC v Professional Game Match Officials Ltd (PGMOL) [2024] UKSC 29, the SC delivered a significant judgment on employee status, addressing the question:

“Is the relationship between a company responsible for providing football referees to the Football League and part-time referees an employment relationship, thereby obligating the company to deduct Income Tax and National Insurance from the payments it makes to the referees?”

Background

In the United Kingdom, there are currently three categories of persons for employment rights purposes: employees, workers, and the self-employed. However, for tax purposes, only two categories are recognised: employees and the self-employed. This judgment concerns tax, but its principles can be applied more broadly.

Facts of the Case

The case involved part-time referees for First and Second Division football matches supplied by Professional Game Match Officials Limited (PGMOL). HMRC had classified these referees as employees. This finding was subject to appeals that centered on the classic employee status tests:

Mutuality of Obligation: Was there an obligation for the referees to provide personal service and for PGMOL to provide work?
Control: Did PGMOL have a sufficient degree of control over the referees?
Other Circumstances: Were all other surrounding circumstances and the contract consistent with employment?

Supreme Court’s Judgment

In examining the facts, the SC noted that the referees were:

Appointed on an annual basis.
Match appointments for the weekend were usually offered on the Monday.
Referees could refuse appointments, although they were typically asked for a reason if they cancelled.
Once accepted, referees could back out before arriving at the match, generally only doing so for illness, injury, or work commitments.
Similarly, PGMOL could cancel appointments at any time.
When accepted, a contract was formed to officiate and complete a match report.
PGMOL would pay the fee.
There were no sanctions on either party for cancelling.

This case underscores the importance of examining the mutuality of obligations, control, and overall circumstances to ascertain whether an employment relationship exists.

Implications and Future Considerations

This is the latest in a long line of cases focussing on what constitutes an employee. The landmark case of Uber BV and others v Aslam and others UKSC 2019/0029 changed the emphasis. Since then we have seen a willingness from courts and the SC to find employee status, perhaps lowering the threshold required to establish sufficient mutuality of obligations and control. This trend indicates a broader interpretation of employment relationships, potentially offering more protections to individuals previously classified as self-employed or workers.

However, this case may have less significance in the future if proposals to move to only two categories of persons – employees and the self-employed – are accepted. Such a change would simplify the classification process but could also impact the rights and obligations of many individuals currently classified as workers.