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Employment Developments: Great Britain New Guides etc. (12 April 2024)

For businesses in Northern Ireland, we have some time to wait before we know the details of exactly what, and importantly how, new employment rights will take shape in the planned Northern Ireland Employment Bill expected later this year.

For now, we continue to look across the water at the latest developments in Great Britain, which this week has produced a flurry of guides including:

1. On 11 April 2024, Kevin Hollinrake, Minister for Enterprise, Markets and Small Business, issued a Statement on review of domestic abuse statutory leave provision for employees.

In his statement, Mr Hollinrake confirmed the GB Government’s position in relation to domestic abuse statutory leave provisions. In its view, ‘now is not the right time to bring forward specific proposals in this [domestic abuse statutory leave provision for employees] area, which are likely to be complex to design given that the needs of victims of domestic abuse can be very different.’

This is in contrast to Northern Ireland, where the legislative provisions are in place and Domestic Abuse Safe Leave will be implemented when it is fleshed out on how it will operate.

2. On 6 April 2024, ACAS (equivalent to LRA)  published its new new Code of Practice on Flexible Working and an updated Guide on the new extended rights to Flexible Working that came into force in Great Britain on the same date.

3. Carer’s Leave Guidance was published by ACAS and the Government on 5 April 2024, the day before the new right came into force in Great Britain on 6 April 2024.

4. On 5 April 2024, the Equality and Human Rights Commission (EHRC) published an updated toolkit to provide employers with clear advice on what they should do to prevent pregnancy and maternity discrimination at work. The guidance advises employers on updated pregnancy and maternity protections in the workplace.

This updated guidance reflects changes to law which came into effect in April 2024.

5. On 9 April 2024, Disability Confident and CIPD worked in partnership with the Department of Works and Pensions to develop Employing disabled people: manager’s guide on recruiting, managing and developing people with a disability or health condition.

The Guide aims to support managers to ‘help recruit, retain and foster the progression of disabled people and those with health conditions in workplace’.

Commentary

Each year, changes are normally expected to be implemented in April or October so it is usual to see new Guides etc.

However, this year there is certainly is a higher flurry of activity perhaps encouraged by a potential imminent General Election. Time will tell when that happens.

In Northern Ireland, we will no doubt look across at what is happening in Great Britain but we will also be looking to the Republic of Ireland.

Conor Murphy, the Economy Minister, has set out in broad terms his Economic Vision and how ‘good jobs’ is an integral part of it. We will undoubtedly see new rights in the employment arena as part of that vision.

 

NEW GUIDE: NATIONAL CYBER SECURITY CENTRE GUIDE RESPONDING TO A CYBER INCIDENT (11 April 2024)

In this modern era and dependence on technology cyber security is one the biggest issues facing businesses.

As such we thought it important to draw Organisations attention to this new guidance published by the National Cyber Security Centre (NCSC), is important as it helps CEOs in public and private sector organisations manage a cyber incident.

The NCSC was launched in October 2016, is the go-to Organisation for cyber security and provides a single point of contact for SMEs, larger organisations, government agencies, the general public and departments.

The Responding to a cyber incident – a guide for CEOs  is divided into 10 sections covering:-

  1. Who is this guidance for?
  2. Why do I need this guidance?
  3. Put in place proportionate and effective governance.
  4. Bring in resources for advice and support.
  5. Consider the impact of a data breach.
  6. Think about your public messaging.
  7. In a ransomware attack, consider the risks of making a payment.
  8. Consider team resilience and welfare.
  9. Review the lessons learned.
  10. Report it.

It is a short and straightforward Guide and will assist in navigating the steps in the aftermath of a cyber incident.

Under review of the lessons learned it refers to the Cyber Security Toolkit for Boards and recommends embedding cyber resilience and risk management through the whole organisation, including your people, systems, processes and technologies and is a good starting point.

Whilst not strictly employment law given the importance of this area we thought it prudent to bring this guidance to your attention.

STATUTORY SICK PAY: COMMITTEE REPORT WITH RECOMMENDATIONS (April 2024)

The House of Commons has published a Committee report, Statutory Sick Pay (SSP) with recommendations to the Government on how to reform SSP. The Government now has two months to respond to those recommendations.

The Report, from the Work and Pensions Committee,  notes that successive Governments have consulted on the need to reform SSP in response to criticisms that the rate of SSP is too low and too many people are excluded as they do not earn enough or have an absence lasting fewer than 4 days.

The Report’s Recommendations and Conclusions include:

  1. SSP does not provide adequate support for those most in need against financial hardship during periods of sickness absence.
  2. SSP rate is too low and suggests a modest increase to the payment in line with Statutory Maternity Pay (to strike a balance between providing additional financial support and not placing excessive extra costs on businesses.)
  3. The Lower Earning Limit should be removed for entitlement to SSP.
  4. Whilst there was some support for removing the 3 waiting Days, the Report recommends retaining the waiting days as removing them could have unpredictable consequences. Furthermore the Report notes that there is no way of knowing if removing the waiting days would increase or decrease sickness absence rates.
  5. The Law should be amended so that SSP can be paid with usual wages. The Report suggests this could help those with fluctuating health conditions as it would allow them to reduce their hours periodically and better manage their condition.
  6. There is a need to consult small and medium-sized businesses to design of a small business rebate for SSP to be introduced alongside our other proposed reforms.
  7. That more should be done for self-employed persons who are not eligible for SSP so that they are no worse off than employees who receive the payment; the Committee recommends that the Government should establish a contributory sick pay scheme for self-employed people to provide them with the same level of income protection as would be available under SSP.

COMMENT

It will be interesting to see the Government’s response to the Committee Report and how (or if) they choose to implement the recommendations. We expect any changes however to form part of the overall Government strategy (with the review of occupational health) to get people back in to, and to remain in, work. Any changes to SSP would apply to all of the United Kingdom.

 

NORTHERN IRELAND: INCREASE IN TRIBUNAL AWARDS (April 2024)

This time of year is all about various increases to payments and awards including statutory payments, national minimum and living wages, injury to feelings awards and other statutory Tribunal awards.

In line with increases applying in the Employment Tribunals in Great Britain, the Northern Ireland Executive has passed The Employment Rights (Increase of Limits) Order (Northern Ireland) 2024  which as published on 27 March 2024. The Economy Minister also announced annual increase in limits for unfair dismissal and redundancy payments.

The Order confirms the new statutory caps on certain awards of Industrial and Fair Employment Tribunals and other amounts payable under employment legislation. Like its Great Britain counterpart it comes into operation on 6 April 2024 and reflects the RPI increases of 8.9% (for the period September 2022 to September 2023).

MAIN ONES TO NOTE:

  • Northern Ireland Week’s Pay* limit increases from £669 to £729
    *used in the calculation of statutory redundancy payments
    (Great Britain increased from £643 to £700)
  • Northern Ireland Compensatory Award increases from £105,915 to £115,341
    (Great Britain increased from £105,707 to £115,115)
  • Northern Ireland Guarantee Pay for any day increases from £35 to £38
    (Great Britain increased from £35 to £38)

It is of note that the limits in Northern Ireland have diverged to those applying in Great Britain. This is due to a different method of rounding up and has resulted in Northern Ireland figures being slightly higher than those applicable in Great Britain.

 

 

The NATIONAL LIVING AND MINIMUM WAGES INCREASES (1 April 2024)

A reminder that the new rates are now in force and apply throughout UK as follows:

  • National Living Wage (now applies to 21 (previously 23 years old) and over) increase from £10.42 to £11.44
  • National Minimum Wage (21-22 years old) was £10.18 in 2023 (category abolished)
  • National Minimum Wage (18-20 years old) increases from £7.49 to £8.60
  • National Minimum Wage (16-17 years old) increases from £5.28 to £6.40
  • National Minimum Wage (apprentice rate) increases from £5.28 to £6.40

Government has provided a link to  Check Your Pay

VENTO BANDS: DISCRIMINATION CASES

As many of you may already know, if a Claimant is successful in their claim of discrimination, the tribunal will make a financial award based on the ‘injury to feelings’ for the ‘hurt, upset and humiliation’ caused by the discriminatory act. These awards are called ‘Vento awards’, appropriately named after the case of  Vento v Chief Constable of West Yorkshire Police (No 2) [2003] IRLR 102, which set clear guidelines for the amount of compensation to be given for injured feelings and set out three bands of potential awards

Each year these these are increased in line with Retail Price Index (RPI).

On 25 March 2024, the President for Employment Tribunals in England and Wales issued Seventh Addendum to Presidential Guidance originally issued on 5 September 2017 for the revised Vento bands to apply to cases lodged on or after 6 April 2024 which are:

  • Lower Band of £1,200 to £11,700 (up from a ceiling of £11,200) – less serious cases;
  • Middle Band of £11,700 to £35,200 (up from a ceiling of £33,700) – for cases that do not merit an award in the upper band);
  • Upper Band of £35,200 to £58,700 (up from a ceiling of £56,200) – for the most serious cases, with the most exceptional cases capable of exceeding £58,700.

Whilst this is Presidential Guidance for England and Wales only, it tends to be followed in Northern Ireland by our Tribunals.

Link to full Article:- Vento v Chief Constable of West Yorkshire Police (No 2) [2003] IRLR 102,

The Labour Relations Agency, in partnership with the Northern Ireland Committee for the Irish Congress of Trade Unions (NIC-ICTU) and endorsed by Women in Business, has developed a Guide on Eliminating Sexual Harassment from the Modern Workplace.

It contains a sample Sexual Harassment Policy and is aimed at employers, employees and their representatives.

In the introduction, the Guide sets out the extent of sexual harassment in the workplace. Indeed,  the Equality Commission for Northern Ireland confirmed it is the area they receive most queries on.

The Guide defines sexual harassment in a workplace setting as:

actions or behaviour with the same purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment”. Sexual harassment occurs “where a person subjects another to unwanted conduct of a sexual nature”.

Examples of types of physical, verbal and non-verbal conduct are provided (e.g. non-verbal conduct would include the display of sexually explicit or suggestive material such as calendars).

The Guide advocates having a stand-alone Sexual Harassment Policy and notes that many simply do not report incidences of sexual harassment.

The Guide then sets out the legal framework in some detail covering the law pertaining to different types of claims, including third party harassment (which differs in Northern Ireland as compared to Great Britain).

In Great Britain, the Worker Protection (Amendment of Equality Act 2010) Act 2023 will replace the existing statutory defence; the statutory defence requires employers to take all steps reasonably practicable to prevent harassment occurring. Instead, there will be a positive duty on employers to take positive steps to prevent sexual harassment and employment tribunals will have the power to provide an uplift of up to 25% in compensation when an employer has failed to take reasonable steps to prevent it. The Guide advocates for the Bystander Approach (also discussed at the Domestic Abuse Conference recently).

The Guide then reviews two recent tribunal cases, reminding employers that having policies and procedures in place is simply not enough and the need for proper investigation.

The Guide also sets out pro-active steps that can be taken, which includes:

  • Gather data;
  • Do not downplay harassment;
  • Have in place an effective sexual harassment policy;
  • Takes a zero-tolerance approach to sexual harassment;
  • Encourage employees to report sexual harassment and ensure know who / how to report sexual harassment;
  • Take allegations seriously, investigate properly and protect from victimisation;
  • Train all employees and train managers; and
  • Ensure leaders visibly communicate commitment.

Comment

The First and Deputy First Ministers recently confirmed that Ending Violence Against Women and Girls is one of the Executive’s top priorities.

Conor Murphy, Economy Minster, has also made it clear that co-design and co-partnership is the way forward so this Guide very apt. It is likely that this approach will be used in other areas.

(Please see link below).

Eliminating Sexual Harassment from the Modern Workplace

NEW ICO GUIDANCE: INFORMATION SHARING IN MENTAL HEALTH EMERGENCIES AT WORK (1 March 2024)

‘What can you do, and what information can you share, when you are worried about an employee’s mental wellbeing?’ This is a question that we commonly get asked when an employer has serious, and genuine, concerns, that an employee’s mental ill health may pose a risk to them or others.

Helpfully, on 1st March 2024, the ICO produced guidance on this issue ‘ Information Sharing in Mental Health Emergencies at Work’. This guidance is in the same format as previous guides (i.e. uses the must, should, and could do to comply).

The Guidance provides advice on when and how it is appropriate to share workers’ information when the employer believes that someone is at risk of causing serious harm to themselves, or others, because of their mental health.

You can read the full guidance, and there is also a data sharing hub with useful guides on when and how to share personal information.

The ICO guide also contains worked examples and links to additional resources and sets out a pathway for business to ensue they are complying with their obligations under GDPR.

 

What is a Mental Health Emergency?

This is defined as situation in which you believe that someone is at risk of serious harm to themselves, or others, because of their mental health including a potential loss of life.

 

Sharing Workers’ Information?

In a mental health emergency the guide states that Employers should share necessary and proportionate information without delay with relevant and appropriate emergency services and/or health professionals.

It states Employers could also share necessary and proportionate information with the worker’s next of kin / emergency contact and cautions that they need to use their judgement on appropriateness of doing so.

 

Planning Ahead?

Here the Guide sets out information about how an Organisation can plan ahead, which includes mandatory (must do) steps such as:

  • identifying the lawful basis to share the sensitive personal information
  • identifying the additional special category needed to share sensitive personal information
  • informing workers you may share their information in health emergency
  • sharing the policy for sharing personal information with existing workers and new workers

In terms of what Employers should do, this includes:

  • carry out a data protection impact assessment (DPIA)
  • Develop a policy
  • Ensure workers are aware of the policy.
  • Train staff
  • Ensure that workers keep next of kin and emergency/mental health emergency contacts up to date

In terms of what Employers could do, this includes:

  • Include this in broader training & awareness around mental health.
  • give workers the opportunity to identify separate emergency contacts for general emergencies and mental health emergencies

 

Lawful Basis and Special Category Conditions 

When sharing personal information in a mental health emergency,

Organisations must identify both a lawful basis to share information and as the data is special category data, it must also identify a special category condition.

The lawful basis could be:

  • Vital interests
  • Legitimate interest
  • Legal obligation

Special category conditions could be:

  • Vital interests
  • Employment, social security and social protection law

 

The Guidance reassures employers that during a mental health emergency  they should share necessary and proportionate information without delay with relevant and appropriate emergency services or health professionals.

 

Any Organisations requiring advice should contact the Legal Team.

 

 

The Introduction of Flexible Working & Right to Request Remote Working & Code of Practice on Handling Requests for Flexible & Remote Working

We write further to our ongoing updates in respect of the implementation of the outstanding aspects of the Work Life Balance Act and Miscellaneous Provisions Act 2023. On Thursday 7th March 2024, Minister for Enterprise Trade and Employment, Simon Coveney TD confirmed that the eagerly awaited final instalments of the Work Life Balance and Miscellaneous Provisions Act 2023 (i.e. the right to request flexible working and the right to request remote working) were introduced.  On the same date, Minister Coveney, also confirmed that, in consultation with Minister O’Gorman, he had also approved and published the WRC Code of Practice for Employers and Employees Right to Request Flexible Working and Right to Request Remote Working.

Minister Coveney stated:

“I am pleased to announce that the right to request remote working arrangements is now available to all employees. Remote working became a new norm for many employers and employees in the wake of Covid-19 and it is clear it is here to stay. This Government committed to facilitating and supporting remote working, to reduce our time commuting and to enable families to spend more time together.

The approval and publication of the Code of Practice for Employers and Employees Right to Request Flexible Working and Right to Request Remote Working will support employees to avail of their rights and employers to operate under the Act.”

The Right to Request Flexible Working

The right to request Flexible Working applies to parents of children under 12 year of age (16 if the child as a disability) and those with caring responsibilities. Although an employee can make a request from day 1 of employment, the arrangement cannot commence until the employee has 6-month’s service.  The right to request flexible working for parents and carers transposes Article 9 of the EU Work Life Balance Directive. Ireland has now fully transposed the Directive.

All employees will have the right to request remote working but there is no obligation to approve this request.

The Right to Request Remote Working

 As with Flexible Working requests, employees can make a Remote Working request from their first day of employment but must have 6 month’s employment before any arrangement starts. Any request must be made at least 8 weeks before the date the employee wants to start the proposed arrangement. Employers must respond to the request within 4 weeks of receiving it, with the option to extend by a further 4 weeks if required.

The Code of Practice

The Code of Practice was developed by the Workplace Relations Commission (WRC), in consultation with trade unions and employer representative bodies. Employers Federation provided a response to the consultation on behalf of our members. The Code provides guidance to employers on how to manage a request and what factors they should consider when deciding whether to grant the request or not. It is not an offence to fail to follow the Code, but a failure to do so is admissible in evidence before the WRC in any employment rights claim.

The Code provides guidance on how to handle a range of situations which may arise when considering a request as well as those that may occur when a request has been granted. Very helpfully, the Code also includes templates documents and guidance on implementing a work life balance policy.

The Code stipulates the time frame that Employers must comply with when considering request for Flexible Working or Remote Working is within 4 weeks of receiving the request, with the option to extend by a further 4 weeks if required.

When responding to the request for Flexible Working or Remote Working , the Employer must either:

  • Approve the request and include an agreement prepared and signed by the employer and employee which sets out the details of the agreed arrangement, the start date and duration, of the arrangement, or;
  • Provide notice in writing informing the employee that the request has been refused and the reasons for the refusal, or;
  • Provide notice in writing informing the employee that more time is needed to assess the request and set out the length of the extension.

Employers and employees are obliged to have regard to the Code when considering applications for remote working arrangements. Employers must also have regard to the Code if terminating a flexible working arrangement. Employees will be able to refer a dispute to the WRC where an employer fails to fulfil their obligations under the Act and the Code will be admissible in evidence in proceedings before a court, the Labour Court or the WRC.

Where a complaint is made about the right to request Remote Working or Flexible Working, the Code confirms that the WRC will not consider the merits of any application but rather the process that the employer has followed, or failed to follow, when reaching its decision.

The maximum award for a breach of the right to request Remote Working is 4 weeks’ pay and for a breach of the right to request Flexible Working is 20 weeks’ pay. Employers must keep specific records of Remote Working and Flexible Working arrangements taken by employees for up to 3 years or risk a fine of up to €2,500.

We will carefully consider the contents of the Code, including the specimen documentation, before finalising our specimen Flexible Working Policy.