SPRING 2025 LEGISLATIVE UPDATE

The Equality (Miscellaneous Provisions) Bill 2024

On 15th January 2025, the Department of Children, Equality, Disability, Integration and Youth introduced the Equality (Miscellaneous Provisions) Bill 2024. Currently at the General Scheme stage, the Bill is undergoing refinement before progressing through Ireland’s legislative process in the Oireachtas. With the goal of fostering equality, inclusivity, and transparency, the proposed amendments main areas are:

• Pay transparency.
• Intersectional discrimination (referred to as dual discrimination in Great Britain the concept for which was introduced in the Equality Act 2010 but has not yet been brought into force).
• Recruitment practices.

This law is introduced to ensure that Irish equality laws (including the Employment Equality Act 1998 and Equal Status Act 2000) are in keeping with European Union Directives like the Pay Transparency Directive. The Bill is heralded as combatting discrimination and promoting fairness in the workplace.

Key Provisions and Proposed Changes

1. Pay Transparency

To comply with the EU’s Pay Transparency Directive, which must be implemented by June 2026, the Bill proposes significant changes to ensure equitable pay practices.

Employers will be:

• Required to disclose salary levels or ranges in job advertisements. While specifics regarding the depth of this disclosure are yet to be determined, the provision aims to eliminate loopholes such as overly broad salary ranges.
• Prohibited from requesting pay history or current salary details from job applicants. This measure is designed to prevent perpetuating pay gaps or discrimination based on previous salaries. For example, it safeguards individuals who may have experienced historical pay discrimination from carrying that bias into new employment.

These measures aim to address longstanding issues, including gender-based pay disparities, and foster greater transparency in remuneration practices.

2. Recruitment Criteria

The Bill requires employers to ensure:

• Job requirements are proportionate and objectively justified, so as to avoid indirect discrimination against protected groups.
• Recruitment processes are free from bias, providing equal opportunities to all candidates. Employers may be encouraged to implement initiatives targeting underrepresented groups, such as women, individuals with disabilities, or ethnic minorities.

To support compliance, employers may need to collect and report diversity data on applicants and hires, ensuring accountability in promoting workplace equality.

3. Intersectional Discrimination

When implemented the Bill will make a significant development in equality legislation by explicitly recognising intersectional discrimination where employees may face discrimination due to overlapping identities. For example, being from a different race and female. This is permitted by amendments to Section 3 of the Equal Status Act clarifying that discrimination can occur on multiple grounds simultaneously and expands employers’ obligations to ensure fair and equitable treatment in the workplace.

While the Bill strengthens protections for employees, it will also introduce new challenges for businesses. Intersectional discrimination can be more complex to assess, as mistreatment may stem from a combination of factors rather than a single characteristic. This increases the need for enhanced HR policies and specialised training to educate and ensure that potential issues are dealt with before they escalate. Additionally, employers may need to adapt workplace policies and procedures to accommodate multi-ground claims.

4. Positive Action Measures

The Bill enables employers to take proactive steps toward increasing participation of underrepresented groups. Expanding beyond gender-based initiatives, employers can develop targeted recruitment programs designed to promote equality across various protected grounds.

Additionally, amendments to the Employment Equality Acts require objective justification for specific qualifications tied to roles, addressing potential indirect discrimination linked to educational, technical, or professional prerequisites.

Members maybe aware the in the US, President Trump signed a number of Executive Orders considered to be a roll back on EDI initiatives and is particularly targeting initiatives aimed at redressing under representation. It will remain to be seen if this mandate in US continues in force and how it will co-exist with any companies operating in US and Ireland.

5. Extended Timeframes for Lodging Complaints

The Bill proposes extending complaint deadlines with the Workplace Relations Commission (WRC) across several key acts:

• Employment Equality Act 1998: Current time limits of six months for filing discrimination claims are extended to 12 months, with an additional six-month extension for reasonable cause.
• Equal Status Act 2000-2018: Notification deadlines for discrimination claims are increased from two months to four, with extensions possible for reasonable cause. Filing deadlines with the WRC are similarly extended from six to 12 months.
• Maternity Protection Act 1994: Adjustments ensure claims related to pregnancy or breastfeeding discrimination can be filed within reasonable timeframes, even up to two years after pregnancy-related issues arise.

Again the extended deadlines are considered as providing greater access to justice for complainants but may pose challenges for employers by lengthening the period during which claims can arise.

Implications for Employers

Employers will need to adopt comprehensive measures to meet the new requirements under the Equality Bill. Key actions include:

• Developing clear anti-discrimination policies and training programs for managers to handle harassment or bias complaints effectively.
• Improving recruitment processes to promote fairness and transparency while addressing underrepresentation of certain groups.
• Ensuring compliance with pay transparency obligations, particularly in job advertisements and hiring practices.
• Training Staff

Additionally, the recognition of intersectional discrimination and extended timeframes for lodging complaints reinforces the need for employers to proactively assess and address workplace practices that may unintentionally perpetuate inequality.

Final Thoughts

The Equality (Miscellaneous Provisions) Bill 2024 reflects Ireland’s continuing commitment to advancing equality in the workplace. As the Bill progresses through the legislative process, we will keep you informed.

1. Gender Pay Gap Reporting Ireland- Online Portal Launch

Minister for Children, Disability and Equality, Norma Foley, has announced that the new gender pay gap reporting portal will be launched in Autumn 2025.

Come the 1^st June 2025, employers with 50 or more employees will be required to publish a gender pay gap report on the online portal.

This portal will bring reports from all private and public sector employers together for the first time. This portal will also be fully searchable by the public.

The current position is that in-scope employers are only required to publish their gender pay gap report on their own website. It is estimated that approximately 6,000 organisations will now be required to report their gender pay gap on the online portal.

Employers must choose a date in June each year as their “snapshot date” for collecting the relevant data. They will then have five months from this date to provide their Gender Pay Gap Report. The reporting date has also been brought forward by one month, moving the deadline for reporting from December to November each year.

CASE LAW UPDATE

1. An Employee v A Café (ADJ-00047296)

Sexual Harassment in Workplace

In a significant ruling (ADJ-00047296), the Workplace Relations Commission (WRC) awarded €12,000 in compensation to a former café worker following a complaint of sexual harassment arising from a work-related event. This decision sheds light on employer liability and the need for robust anti-harassment policies.

Background of the Case

 The complainant, who was employed by the café for 12 weeks in 2023, alleged she was sexually harassed by her manager, Mr. X, during a night out attended exclusively by café staff. The incident occurred when Mr. X walked the complainant home, allegedly pushing her against a wall and kissing her. The complainant stated she rejected his advance and pushed him away.

Following the incident, the complainant claimed Mr. X became hostile and critical of her work. She described experiencing stress due to the situation and eventually resigned from her position in June 2023. She further alleged that her concerns were not adequately addressed by management despite her attempts to escalate the issue.

Mr. X, however, argued the kiss was accidental and that he apologised immediately. He maintained that any criticism of the complainant’s work was due to her performance, which did not meet the café’s standards.

WRC’s Findings

 After examining the evidence, the Adjudicator concluded that the incident of sexual harassment occurred as described by the complainant. He noted that her actions—such as discussing the matter with colleagues and contacting senior management—supported her account.

The Adjudicator determined that Mr. X’s behaviour fell within the definition of sexual harassment under the Employment Equality Acts 1998-2015. Crucially, it was ruled that the night out, although not officially organised by the café, fell within the scope of employment due to its exclusive attendance by staff and its connection to the workplace.

The café’s legal defence argued that employers should not be discouraged from allowing social events for fear of liability. However, the WRC held that the café had failed to take reasonably practicable steps to prevent workplace harassment. This failure included a lack of training for managers, ineffective communication of anti-harassment policies, and inadequate support for the complainant.

 Outcome

 The WRC awarded the complainant €12,000, noting this was close to the maximum compensation available for such claims. However, it dismissed her allegations of workplace retaliation and confirmed her resignation was not considered constructive dismissal.

 Lessons for Employers

This case highlights the importance of robust workplace policies on harassment and proactive measures to prevent such incidents. Employers should ensure:

• Clear communication and accessibility of anti-harassment policies.
• Proper training for all staff, especially managers, on handling harassment complaints.
• Effective mechanisms for employees to report harassment safely.

 Anonymisation in WRC Decisions

 Notably, the WRC anonymised this decision, aligning with a recent Supreme Court judgment in another case. The Adjudicator acknowledged the potential for reputational harm arising from published rulings and deemed anonymity appropriate to protect the parties involved.

This case serves as a reminder that while social interactions among staff can foster camaraderie, employers must remain vigilant in ensuring a safe and respectful environment for all employees—inside and outside the workplace.

2. Tom Ronan V Commissioner for An Garda Siochana, Ireland and the Attorney General (High Court)

Employment disputes in Ireland often involve complex legal procedures, with injunctions emerging as a crucial mechanism for addressing issues like wrongful termination, discrimination, or breaches of employment law.

The ongoing case of Tom Ronan exemplifies the intricacies of this process, particularly in the context of age discrimination and mandatory retirement.

Background

Mr. Ronan, a civilian Garda driver, faced mandatory retirement at the age of 70 despite his protest that the decision constituted age discrimination. His complaint was upheld by the Workplace Relations Commission (WRC), who ruled that forcing Mr. Ronan to retire was discriminatory.

The WRC decision provided for re-engagement within four weeks of the ruling and extension of his employment for an additional three years.

Interestingly, while WRC acknowledged the objective justification for the mandatory retirement age, he found it unreasonable in Mr. Ronan’s case due to the financial hardship the retirement would impose.

On 14 November 2024, the first defendant appealed the WRC determination to the Labour Court and did not re-engage Mr. Ronan as directed by the WRC. Instead, the defendant sought Mr. Ronan’s consent for a stay on the WRC determination and formally requested a stay from the Labour Court on 20 November 2024.

The Labour Court, via a letter dated 27 November 2024, stated it had no jurisdiction to grant a stay. It clarified that any appeal to the Labour Court results in a de novo (fresh) hearing, and the WRC decision carries no binding weight during this process.

Mr. Ronan requested re-engagement in line with the WRC determination. However  the defendant declined, citing section 43(3) of the Workplace Relations Act 2015 which provide that WRC determinations are unenforceable while under appeal.

Mr. Ronan -initiated proceedings on 29 January 2025 and secured an interim injunction on 30 January 2025 to enforce the WRC determination and require re-engagement, allowing him to resume his duties temporarily.

 On 4 February 2025, the defendants then filed an application to discharge the interim injunction. The court consolidated both applications, which were subsequently heard on 6 February 2025.

However, when Mr. Ronan applied for an interlocutory injunction to maintain the interim arrangement until the Labour Court’s hearing, his request was denied on 14th February 2025.

That High Court held that:

• Age discrimination claims should be pursued through statutory mechanisms, namely the WRC and Labour Court.
• Granting an injunction would interfere with the Labour Court’s decision-making role.
• Section 43(3) of the Workplace Relations Act 2015 clarifies that WRC orders cannot be enforced by the District Court while under appeal.
• Exceptional circumstances are required to justify granting relief through an injunction when statutory remedies are available, and no such circumstances existed in this case.

The High Court’s decision reflects the limits of judicial intervention in statutory frameworks, emphasising the integrity of processes outlined in employment legislation.

Injunctions play a vital role in Irish employment disputes, offering temporary relief while awaiting the resolution of legal claims. They typically fall into two categories:

Interim Injunctions: Short-term measures granted without full arguments from all parties. These aim to preserve the status quo until the dispute is resolved.

Interlocutory Injunctions: Longer-term relief granted after hearing arguments from all parties. These remain in effect until the case’s conclusion.

For injunctions to succeed in employment disputes, claimants must typically satisfy three criteria:

• There is a serious issue to be tried.
• Damages would not suffice as compensation.
• The balance of convenience favours granting the injunction.

This case underscores the limits of using injunctions to enforce WRC orders under appeal. It highlights the principle that statutory remedies must be exhausted before judicial intervention. Moreover, Justice Mulcahy’s ruling illustrates that courts are reluctant to grant injunctions that could pre-emptively determine the outcome of statutory procedures.

Implications for Employers

Mandatory retirement ages and age discrimination remain highly complex areas of employment law.

Employers should:

• Seek legal advice before enforcing mandatory retirement, particularly when employees request to extend their employment.
• Ensure compliance with anti-discrimination legislation to mitigate the risk of disputes.
• Understand the potential implications of WRC rulings and appeals, including the limits on enforcement of decisions under the Workplace Relations Act 2015.

Looking Ahead

Mr. Ronan’s efforts to appeal the High Court’s refusal of an interlocutory injunction will be closely watched, as the Supreme Court or Court of Appeal may weigh in on the broader implications for employment law. Additionally, the Labour Court’s ruling on the WRC decision will provide further clarity on mandatory retirement and age discrimination.

ACAS has published new guidance on the rights to neonatal care leave and pay, which came into effect on Sunday, 6 April 2024.

The new rights to neonatal care leave and pay are to support for parents with a baby in neonatal care,

The Guide is divided into 6 parts covering

1. What the Law Says: An overview of the legal framework for neonatal care leave.
2. Checking Eligibility for Leave: Criteria for determining who qualifies for this leave.
3. Telling an Employer: How and when employees should notify their employer about their need for leave.
4. Managing Leave: Best practices for employers to support their staff during neonatal care leave.
5. Pay: Details of entitlement to neonatal care pay.
6. Rights During and After Leave: Protections for employees while on leave and when they return to work.

Some Key Points:

Duration of Leave: Neonatal care leave can range from a minimum of 1 week to a maximum of 12 weeks, depending on how long the baby requires neonatal care.

Eligibility: To qualify, the baby must have been in neonatal care for at least 7 consecutive days.

Combining with Other Leave: Neonatal care leave can be added to the end of any pre-booked statutory parental leave, giving parents additional flexibility.

Notice Requirements depend on whether the leave is classified as Tier 1 or Tier 2 Leave:

• Tier 1 Leave: Covers the period when the child is still in neonatal care and includes 1 week after neonatal care ends.
• Tier 2 Leave: Applies to the period beyond Tier 1 and before the end of 68 weeks from the child’s birth.

Retrospective Entitlement: Eligibility is only formalized once the child has been hospitalized for 7 days of neonatal care.

What Should Employers Do?

These provisions can be intricate and GB employers should ensure they understand the provisions. We have also have a Neonatal Care and Leave Policy and can provide this to any Member on request by emailing info@eefni.org

The ACAS Guidance can be accessed here

The Department for the Economy has confirmed the annual adjustment to limits for unfair dismissal and redundancy payments applying in Northern Ireland.

The Employment Rights (Increase of Limits) Order (Northern Ireland) 2025 will come into effect on 6 April 2025 aligning with similar changes in Great Britain.

Northern Ireland-Specific Figures

Notably, the updated Northern Ireland figures remain slightly higher than those in Great Britain.

The revised limits are as follows:

• Compensatory Award for Unfair Dismissal: Increasing from £115,341 to £118,455 (compared to £118,223 in GB).

• Maximum Amount of a Week’s Pay: Rising from £729 to £749 (compared to £719 in GB).

• Statutory Guarantee Payments: Rising from £38 to £39 (same rate as GB)

These changes apply to cases where the “appropriate date” falls on or after 6 April 2025. For example, where an employee’s dismissal becomes effective on or after this date.

The new limits are designed to reflect changes in the Retail Prices Index (RPI) between September 2023 and September 2024, which recorded a 2.7% increase (source: Office for National Statistics, all items RPI).

Employers should take note of these updated limits and adjust their calculations for redundancy payments and potential unfair dismissal claims that fall on or after 6 April 2025.

The UK Government recently published its response to Making Work Pay: Strengthening Statutory Sick Pay (SSP) on 4 March 2025.  Then on 14 March 2025, the government responded to a report published by the House of Commons Work and Pensions Committee entitled Statutory Sick Pay

We have set out these key updates arising from these documents and the implications for Northern Ireland employers below.

Northern Ireland and SSP Changes

Although SSP is a transferred matter in Northern Ireland, meaning that it is the responsibility of the NI Assembly to decide how to proceed, historically we have always maintained parity with GB.

The Government’ response confirms that that will continue to be the case. It states:

“SSP is a transferred matter in Northern Ireland, however following extensive engagement with the Department of Communities, both governments agreed to bring forward amendments to extend these changes to Northern Ireland, including the percentage rate of 80%. Therefore, subject to the approval of a Legislative Consent Motion by the Northern Ireland Assembly, parity will be maintained in relation to SSP. We will continue to work closely with the Department for Communities in Northern Ireland as the Bill progresses.”

Therefore Northern Ireland will implement these changes in the same way and at the same time as GB.

Planned SSP changes

 The changes that will be made to SSP are as follow:

1. SSP Rate Adjustments: A new rate for SSP will be set at either 80% of weekly earnings or the existing flat rate (increasing from £116.75 to £118.75 per week as of April 2025). This new higher flat rate of SSP (£118.75) only comes into effect only in April 2025 in line with usual annual increases that we expect. The other, more fundamental, changes to the SSP regime currently have no date for implementation at this stage.
2. When the more fundamental changes come into effect it does mean that for some employees they maybe worse off under the when these changes take e as they will receive 80% of their salary rather than the flat rate. For example, an employee earning £125, which is slightly above the lower earning threshold, would currently receive £116.75. Under the new regime they will receive a lower sum of £100.

The Government refused calls to align SSP to levels of other benefit such as SMP (which increases to £187.18 or 90% of the employee’s average weekly earnings, whichever is lower in April 2025) for reasons that includes SMP is a planned absence that is paid for different reasons and small employers can recoup up to 92% of it.

3. Removal of the Waiting Period: SSP will be paid from Day 1 of absence rather than Day 4.

4. Elimination of the Lower Earnings Threshold: The Lower Earnings Threshold is currently £123 per week rising to £125.00 or more per week  in April 2025. When implemented, all employees, regardless of income, will qualify for SSP.

These changes will be made to the GB Employment Rights Bill, which is currently progressing through Parliament and currently being considered in the House of Lords with its Second Reading on 27 March 2025.

What’s Not Changing

Again despite calls for a rebate scheme the Government has confirmed that there will be no Rebate Scheme for Small Businesses.

Instead the Government has said it will consider how employers can be supported in promoting healthy workplaces that enable people to stay in, or return to, work.

The government has also confirmed that there will be no reduction in Self-Certification Period which will remain at 7-days when the employee can self-certify as being not fit and only expected to obtain a Fit Note from Day 8.

Timeline and Implementation

The GB Employment Rights Bill is expected to gain Royal Assent before the 2025 summer recess. However, SSP changes will not take effect immediately—they will be implemented only once the Act’s provisions are commenced. The government has assured that employers will have sufficient time to prepare for these changes. At this point (other than the annual increase to the rate) there is no date for implementation.

In Northern Ireland, the rollout of these changes is expected to align with the GB timeline, subject to the necessary approval processes.

We will keep you updated as the legislative process unfolds to ensure readiness for these significant SSP reforms. Clear communication with employees and adjustments to internal policies will be key to ensure a smooth transition.

Great Britain Employment Rights: Increase in Limits (14 March 2025)

In Great Britain, The Employment Rights (Increase of Limits) Order 2025 (No. 348) was laid before Parliament on 14 March 2025 and comes into effect on 6 April 2025. This sets out the level of annual increases to awards and amounts

Increases from 6 April 2025:

The Order confirms that from 6 April 2025:

• Week’s Pay: Rises from £700 to £
• Compensatory Award* Increases from £115,115 to £118,223*. 

(In GB, the compensatory award  is capped at the lower of either this upper limit or one year’s salary. In contrast, Northern Ireland only applies the statutory cap of  the upper limit and has no corresponding  one-year salary cap.)

• Guarantee Pay: A modest increase from £38 to £39 per day.

These new rates apply to events, such as dismissals, dismissals, occurring on or after 6 April 2025.

Updates for Northern Ireland

Northern Ireland has yet to publish its updated rates. Companies maybe aware that the rates in Northern Ireland  historically  differ to those in GB due to a different rounding method. For example, in comparison in 2024, Northern Ireland’s limits include:

• Compensatory Award: £115,341 (2024 rate).
• Week’s Pay Limit: £729 (2024 rate).

It is expected that any new rates for NI will also take effect from 6 April 2025. We will notify Members when the new rates are published.

In January 2025, President Trump signed three Executive Orders (EOs) that aimed at rolling back the Diversity, Equity, Inclusion, and Accessibility (DEIA) targets and programs previously promoted within the federal government.

The three Executive Orders (EO) signed by President Trump were:

1. “Ending Radical and Wasteful Government DEI Programs and Preferencing”– Focused on curbing government spending on DEI programs, and ending of the promotion of diversity-based policies deemed inconsistent with federal anti-discrimination laws.
2. “Ending Illegal Discrimination and Restoring Merit-Based Opportunity”– eliminating the affirmative action mandates and requiring all appointments to be on merit

3. Defending Women from Gender Ideology Extremism & Restoring Biological Truth to the Federal Government requires that their gender policies align only with biological distinctions of male and female

Additionally upon swearing in of the new Attorney General,  Pam Bondi issued two Memorandums to give effect to these EO’s. In the Memorandum entitled  Ending Illegal DEI and DEIA Discrimination and Preferences she directed DOJ’s Civil Rights Division to:

“investigate, eliminate, and penalize illegal DEI and DEIA [diversity, equity, inclusion, and accessibility] preferences, mandates, policies, programs, and activities in the private sector and in educational institutions that receive federal funds.

Therefore it mandates the identification of steps to deter DEI programs deemed discriminatory, including proposals for up to nine civil compliance investigations and possible criminal investigations. Targeted entities include large publicly traded corporations, non-profits, wealthy foundations, bar/medical associations, and well-endowed universities.

The report must also address potential litigation regulatory actions, and guidance.

A second internal facing one entitled Eliminating Internal Discriminatory Practices directed federal government to rescind their policies, practices that were not base don meritorious appointment and issue a report paying particular attention to ending:

“references to DEI or DEIA in (1) training and programs, including references to “unconscious bias,” “cultural sensitivity,” “inclusive leadership,” and any emphasis on race- or sex-based criteria rather than merit; (2) policies and guidelines, including hiring, promotion, or performance evaluation policies; and (3) vendor contracts and budget materials.”

So what does this all mean?

Executive Orders are directives issued by the President, instructing government agencies to take specific actions to faithfully execute federal laws. While EOs shape government policies, they do not change the law itself. Instead, they guide federal agencies on how to interpret and implement existing laws. However, adherence to these directives is crucial, as failure to comply can lead to legal investigations and other consequences.

The Memorandums explains how the Department of Justice will act to take effect to these EO’s. There remains uncertainty about these provisions and further guidance from DOJ is awaited. There are also legal challenges underway on the validity of these new provisions on grounds that they infringe constitutional and free speech rights.

The effects of these include:

1. US Government Employees on DEI Programs

DEI staff within the federal government were placed on paid leave almost immediately, and related programs were mandated to cease within 60 days.

2. Federal Contractors

Businesses contracting with the U.S. government, whether domestic or international, are required to comply with these orders. They must certify that their DEI initiatives do not violate any federal anti-discrimination laws. Non-compliance risks the termination of their government contracts. False statements can result in a False Claims Act (FCA) and non-payment of fees and a fine triple the size of the contract.

3. Ripple Effects Globally

The impact of these orders isn’t confined to the U.S.:

Multinational Corporations and large global businesses, may feel pressured to align with the new directives. Many will opt to avoid scrutiny, potentially leading to a reduction in the promotion of DEI programs across the board.

Small Businesses Smaller companies that look to larger firms for leadership and trends in diversity practices may also scale back their DEI initiatives.

Relevance in the UK (NI and GB) and Beyond

While the U.S. has historically pursued affirmative action policies to promote underrepresented groups, these steps often extend beyond what is permitted under Northern Ireland (NI) and Great Britain (GB) laws.

The recent EOs have introduced uncertainty. Businesses across the globe are trying to navigate this changing landscape carefully. For those in NI and GB, the focus must remain on fulfilling equality obligations under local law while striving to maintain inclusive and diverse workplaces.

We have provided summary of the laws in Northern Ireland below to assist businesses who may be assessing what they must continue to do here to comply with the laws.

Northern Ireland

Northern Ireland has its own legislative regime which is similar to GB but has some distinct differences.

There is a requirement for registered employers to monitor community background and sex of employees on annual basis

A form of positive action and affirmative action is permitted in Northern Ireland but operates in a very different way to that in US.

Laws requiring Gender, Ethnicity and Disability Reporting are also due to come into force

DEI Laws in Northern Ireland

Various Equality laws (see below) cover 9 protected characteristics of Sex / Pregnancy or Maternity Leave / Gender Reassignment Being Married or in a Civil Partnership / Disability / Race / Religious or similar Philosophical Belief / Political Opinion / Sexual Orientation / Age

See https://www.equalityni.org/legislation

Equal Pay Act (NI) 1970, and Sex Discrimination (NI) Order 1976

These laws prohibit discrimination and harassment on the grounds of sex; pregnancy and maternity leave; gender reassignment; being married or being a civil partner.

Special protection for a female on maternity leave from being made redundant (first refusal of any suitable alternative employment)

Fair Employment & Treatment (NI) Order 1998

This law prohibits discrimination and harassment on the grounds of religious belief or similar philosophical belief and political opinion.

Fair Employment and Treatment Order includes Article 55 Reviews, so that all registered employers (11 or more employees) must monitor the composition of their workforce in terms of whether they are from Protestant or the Roman Catholic communities or neither and also monitor their sex and file an annual report to Equality Commission Northern Ireland. Criminal Offence not to comply.

Northern Ireland Act 1998

Section 75 requires public authority employers to promote, monitor and to consider taking positive action where appropriate across the nine equality categories

Disability Discrimination Act 1995 and Autism Act (NI) 2011/ Autism (Amendment) Act of 2022

This law prohibits disability discrimination and disability-related harassment against disabled persons.

Employers are allowed to reserve job vacancies for: people who have disabilities (but not for people who do not have disabilities). Employers must act with caution

Autism Act places a duty upon government to implement an effective autism awareness campaign strategy.

Race Relations (NI) Order 1997

This law prohibits discrimination and harassment on the grounds of race; colour; ethnic or national origins; nationality; belonging to the Irish Traveller community.

Employment Equality (Sexual Orientation) Regulations (NI) 2003

This law prohibits discrimination and harassment on the grounds of sexual orientation.

Employment Equality (Age) Regulations (NI) 2006

This law prohibits discrimination and harassment on the grounds of age.

These Regulations could permit an employer to commit an act of direct discrimination (for example, reserving a quota of jobs for people in a certain age group) so long as the act can be objectively justified. This can only occur where the act is a proportionate means of achieving a legitimate aim.

Article 2 (Dedicated Mechanism) Protocol on Ireland and Northern Ireland 31 January 2020

Sets out certain commitments in relation to rights and equality to ensure that there is no diminution of rights, safeguards or equality of opportunity, as set out in that part of the 1998 Agreement in the area of protection against discrimination, as enshrined in the provisions of Union law listed in Annex 1 to the Protocol

NI Equality codes of practice are:

• Fair Employment in Northern Ireland – Code of Practice
• Removing Sex Bias from Recruitment and Selection – A Code of Practice
• Code of Practice on Equal Pay
• Code of Practice for Employers for the Elimination of Racial Discrimination and the Promotion of Equality of Opportunity in Employment
• Disability Code of Practice – Employment and Occupation

Gender, Ethnicity and Disability Pay gap Reporting due to come in imminently.

Positive Action / Affirmative Action that is permitted in NI

The basic rule is that it is unlawful to make recruitment or other employment decisions on any of the 9 protected grounds. Equality Commission in Northern Ireland has produced Positive Action an Employers Guide

Two important exceptions to this rule are that employers are, however, allowed to reserve job vacancies for:

(a) people who have disabilities (but not for people who do not have disabilities). Employers who do this must still act with some caution.

(b) people in certain age groups, but only where an employer can objectively justify such an action

Other Outreach Positive Action is permitted subject to certain preconditions: In summary, outreach positive action involves reaching out to specific under-represented or disadvantaged groups of people: for example, depending on the specific circumstances that apply in a particular workplace the groups might be: disabled people, members of the black or ethnic minority communities, women or men, Protestants or Roman Catholics, gays and lesbians and can include:

• Encouraging people to apply for job and training opportunities
• Offering training opportunities and facilities
• Reserving job vacancies for persons who are unemployed

If you require more information on this please contact our Legal Team.

Employers often face challenges in balancing the rights of employees with conflicting views, such as gender-critical beliefs and those regarding sexual orientation or same-sex marriage. These cases are frequently fact-specific, with actions that may be appropriate in one instance not being suitable in another. However, the recent Court of Appeal judgment in the case of Kristie Higgs v Farmor’s School provides a helpful framework for employers navigating this complex issue.

Case Overview

Kristie Higgs, a teacher at Farmor’s School, was dismissed over two posts on her personal Facebook account, made under her maiden name. The posts, which criticized same-sex relationships, were deemed transphobic and homophobic by a parent who complained to the headteacher.

Legal Proceedings

In the tribunal, it was argued that Higgs was entitled to hold her views but was dismissed due to the objectionable manner in which she expressed them. Initially, the Employment Appeal Tribunal (EAT) had remitted the case back to the Employment Tribunal (ET) due to flawed reasoning. However, the Court of Appeal overturned this decision, finding Higgs’s dismissal to be discriminatory and providing a clear framework for employers.

Key Points from the Judgment

1. Unlawful Direct Discrimination: Dismissal solely because an employee has expressed religious or other protected beliefs, to which the employer objects or fears will offend third parties, constitutes unlawful direct discrimination.
2. Proportionate Response: If the dismissal is motivated not just by the expression of the belief but by something objectionable in the way it was expressed, the employer must show that the dismissal was a proportionate response. This determination must be objective and justified.

Court’s Conclusion

The Court concluded that the factors relied upon by Farmor’s School could not justify Higgs’s dismissal:

• There was no reason to believe that Higgs, who had worked at the school for six years without complaint, would express such views at work or display discriminatory attitudes towards pupils.
• Although the posts’ language was rhetorical and provocative, it did not express hatred or disgust for gay or trans people. Higgs stated she endorsed the content of the messages, not their language.
• The risk to the school’s reputation was minimal, given the limited access to Higgs’s Facebook account.

Paragraph 175, offers valuable insights for those who want a quick summary of the case.

Conclusion

This case emphasizes that the appropriateness of behaviour must be determined objectively and that any disciplinary action must be proportionate. Employers must prove that the dismissal is objectively justified, not merely that they believed it to be justified.

It is important for businesses to pause and take a measured response when dealing with conflicting beliefs.

From 31 December 2024, the Home Office Guidance Guidance Workers and Temporary Workers: sponsor a skilled worker prohibits the recoupment of certain fees from sponsored workers. These changes are aligned with a commitment made in the Written Ministerial Statement on 28 November 2024, ensuring that specific costs are not passed on to sponsored workers.

Key Changes

1. Skilled Worker Sponsor Licence Fees:

Sponsors are no longer permitted to pass on the cost of the sponsor licence fee or associated administrative costs, including premium services, to sponsored workers.

2. Certificate of Sponsorship (CoS) Fees:

For CoS assigned on or after December 31, 2024, sponsors cannot pass on these fees to sponsored workers.

3. Amendment for Study Route Switch:

A minor amendment has been made reflecting a change of name for the CoS category where the worker is applying to switch from a study route.

4. Defined CoS Assignment:

It is now clarified that a Defined CoS must be assigned to a worker within 90 days from the date it was allocated to the sponsor, instead of the previously stated 3 months.

Consequences for Sponsors:

If a sponsor is found to have recouped or attempted to recoup these costs from sponsored workers, their sponsor licence will usually be revoked.

Commentary:

This now answers the question if these costs can be passed on to candidates. Indeed we understand that on occasion candidates offer to pay these costs in exchange for employment. Moving forward, this practice is no longer permissible. Businesses with any contractual recoupment clauses for these fees must ensure that these clauses are removed so as to comply with the new Guidance.

The Industrial Tribunals and Fair Employment Tribunal (Constitution and Rules of Procedure) (Amendment) Regulations (Northern Ireland) 2024 came into effect on 12 December 2024, making amendments to The Industrial Tribunals and Fair Employment Tribunal (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2020.

The key amendments include:

1. Employment Judge Sitting Alone

An Employment Judge may now sit alone in certain circumstances. Whilst the specific conditions for this are not detailed in the Regulations, they may be outlined in a subsequent Practice Direction. Currently Employment Judges in Northern Ireland can sit alone in unlawful deduction from wages claims.

Since 2012, Employment Judges in Great Britain have been allowed to sit alone in unfair dismissal cases. We anticipate that we may follow this approach. In July 2024, the Senior President of the Tribunals in GB issued a Practice Direction which now permits Employment Judges to sit alone in all cases in GB.

2. Multiple Claimants on a Single Claim Form

In certain circumstances the amendments allow two or more Claimants to make their claim on a single Claim Form. This change is intended to streamline the process for cases involving multiple parties.

3. Default Judgments and Recording of Judgments

The Regulations provide for the issuance of default judgments and exempt the recording of judgments on the register when a claim is withdrawn.

4. Reasonable Notice of Hearings

The amendments require reasonable notice of Hearings, which can be less than 14 days if all parties consent. This flexibility is designed to expedite the scheduling of Hearings.

Commentary

As the Employment Tribunal in NI continues to modernise it will be interesting to see whether we adopt the GB practice of allowing Employment Judges to sit alone in all cases.

In our experience lay members play a critical role in Employment Tribunal Hearings by bringing realism and industrial knowledge to the decision-making process. In panels of three, lay members have equal voting power and can out-vote the Employment Judge, although this is rare. Indeed, there was an extensive recruitment campaign for lay members which was completed earlier in 2024 so it will be interesting to see how the extent of their role develops.

EHRC GUIDANCE: NEW SEXUAL HARASSMENT LAW AND WORKPLACE CHRISTMAS PARTIES: WHAT EMPLOYERS NEED TO KNOW

On 11 December 2024, the Equality and Human Rights Commission (EHRC) published guidance aimed at assisting organisations in complying with the new positive duty on employers to prevent sexual harassment at Christmas parties. Although the guidance states it is specific to Christmas parties, it can be applied to any work-related event.

Background

In Great Britain, a positive duty to prevent sexual harassment came into force on 26 October 2024. To accompany this new duty, the EHRC updated its technical guidance on Sexual harassment and harassment at work: technical guidance and released an Employer 8-step guide: Preventing sexual harassment at work

This New sexual harassment law and workplace Christmas parties: What employers need to know is intended to supplement those Guides.

EHRC’s Top 3 Steps for Preventing Sexual Harassment During Work Parties

The EHRC has outlined three essential steps that organisations should take to prevent sexual harassment and ensure a safe environment for all employees.

1. Think Ahead to Prevent Problems and Risks

• Alcohol: Recognize that alcohol can lower inhibitions and lead to inappropriate behaviour. Consider setting limits on alcohol consumption at events.
• Overnight Stays and Travel: Ensure that accommodation arrangements are safe and appropriate. Communicate that the same standards of behaviour apply at all times, not just during the event itself.
• Power Imbalances: Be mindful of the dynamics between senior staff and junior colleagues, and consider the gender composition of the workforce. Address potential issues proactively.

2. Set Expectations Early and Remind of Company Policies

• Define Sexual Harassment: Ensure employees understand what constitutes sexual harassment in the workplace.
• Reporting Procedures: Remind staff about the procedures for reporting and witnessing sexual harassment.
• Behaviour Standards: Reinforce the standard of behaviour expected at both company-arranged events and informal social gatherings.

3. Consider the Risk of Third-Party Harassment

• Risk Assessment: Complete a risk assessment during the planning stages of the event to identify potential hazards.
• Safer Locations and Activities: Use the risk assessment to choose safer locations and activities that minimize the risk of harassment.
• Communication: Clearly communicate your organization’s expected standards of behaviour to staff and any relevant third parties involved in the event.

Conclusion

Whilst the new duty to prevent sexual harassment does not extend to Northern Ireland the EHRC’s guidance is very helpful as it provides a proactive approach to preventing sexual harassment at work-related gatherings. By thinking ahead, setting clear expectations, and considering the risk of third-party harassment, organisations can create a safer and more inclusive environment for their employees.

Implementing these steps would not only help to comply with the new legal duty In Great Britain it would also foster a respectful and supportive workplace culture.

Taking these steps would also assist any Organisation in establishing that they have taken all reasonable steps to prevent sexual harassment and defend any sexual harassment claim in Northern Ireland.