Equality Commission for Northern Ireland has published its latest Fair Employment Monitoring Report (July 2024)

On 10 July 2024, the Equality Commission published its 33^rd Fair Employment Monitoring report.

By way of background, the Fair Employment and Treatment (Northern Ireland) Order 1998 is unique to Northern Ireland. All employers who employ 11 or more full time employees (that is, employees working 16 hours or more per week) must register with the Equality Commission.

Those required to monitor must submit an annual monitoring return to the Equality Commission covering employees, applicants, appointees and apprentices. Businesses with more than 250 employees must also monitor promotes and leavers.  Failure to submit a monitoring return is a criminal offence. Employers must keep a record of community background i.e. whether the person is from the Protestant Community or the Roman Catholic Community in Northern Ireland or neither.

Regulation 17 of the Fair Employment (Monitoring) Regulations (NI) 1999 (Monitoring Regulations) requires an employer to retain the following:

• written information obtained for making a determination
• record of the determination made in respect of any such person until the expiration of 3 years from the date on which the person to whom the information of determination relates ceases to be employed in the concern.

This means the monitoring form completed, as well as the determination made about the person, must be retained. A similar 3-year period applies in relation to monitoring information about applicants and this is for a period of 3 years from the date of the application.

The latest Monitoring Report shows the breakdown of the monitored workforce in Northern Ireland by community background using data provided by private and public sector employers based on their workforces in 2022.

The Equality Commission has commented that:

For the first time since monitoring began, the share of the total monitored workforce from:

members of the Roman Catholic community [50.1%] was greater than that of members of the Protestant community [49.9%], reflecting a trend whereby Roman Catholics represent a majority of those available for work.

This marks an end to the long-established trend of members of the Protestant community accounting for a greater share of the total monitored workforce and continues the trend of an increasing share from members of the Roman Catholic community. In the same period, the female share of the monitored workforce increased by 0.1 pp from the previous year (52.5%).

Full details of the 33^rd Fair Employment Monitoring Report (2022) are available online

Domestic Abuse – Safe Leave Public Consultation

On 5 July 2024 the Department for the Economy launched a public consultation on how to operationalise the provisions in the Domestic Abuse (Safe Leave) Act (NI) 2022.

This consultation seeks to inform the public about the Department’s intention to introduce regulations, under and in accordance with provisions of the Domestic Abuse (Safe Leave) Act (NI) 2022, to entitle employees and workers, who are victims of domestic abuse, up to 10 days paid safe leave in each leave year for the purpose of dealing with issues related to that abuse.

In the Foreword, the Minister notes the scale of the issue in NI e.g. in 12 months (from 1 April 2023 to 31 March 2024) there were 32,763 domestic abuse incidents recorded by the police.

The Act was originally introduced as a framework with the detail to be provided in Regulations, however many aspects of the Right are provided by the Act, such as:

• Both Employees & Workers are entitled to the safe leave as a Day 1 right;
• Applicants must provide notice to employer but not evidence of domestic abuse having taking place;
• Cost of the paid leave to be met by employer* (intended that this is at the usual rate of pay);
• Department to report on operation of the regulations (no reporting for employers).

The purpose of this Consultation is to determine some practical and implementation measures such as:

1. How to develop Legislative Framework
2. The Process for taking Safe Leave
3. Regulatory, Equality and other impacts of the Right

Of note are issues around:

• Pay (question relates to if should be normal pay as paid for the Working Time Directive Holidays or basic pay)
• Notice Requirements (if should be a requirement in Regulations or dealt with by Guidance)

It is a much shorter document containing 16 Questions and again would encourage Members to respond.

You can respond online at:

https://www.economy-ni.gov.uk/consultations/domestic-abuse-safe-leave

The closing date for the consultation responses is: 5.00pm on Friday 27 September 2024.

We will also cover this briefly at the Briefly Session on 31 July 2024 and very much welcome any comments or questions from Members.

On 1 July 2024, the Economy Minister launched the much awaited Public Consultation entitled the ‘Good Jobs’ Employment Rights Bill’

This is the first in depth Consultation on Employment Rights in Northern Ireland in a very long time and it’s truly a bumper one.

The Consultation is divided into 4 Main Themes with 190 Questions. At a high-level overview the proposals include:

• Recent new rights that have been brought in in Great Britain via Private Member Bills such as:
• Neonatal Leave
• Carer’s leave
• Protection from redundancy during pregnancy & family leave

• Other rights that were implemented in Great Britain over last few years such as:
• Day 1 Written Statement, requirement to provide additional particulars, and extending it to workers
• Abolishing Pay between Assignments for Agency Workers
• Key Information Documents for Agency Workers
• Fire & Rehire Proposals

• Proposals that are part of the Labour Manifesto such as:
• Right to Disconnect
• Workplace access for Trade Unions
• Electronic balloting
• Collective Sectoral Bargaining (no proposal but seeking views on how it can be improved)

• Proposals bespoke to Northern Ireland such as:
• Public Interest Disclosure and Annual Duty to Report

Helpfully on pages 4 – 8 it has a Summary of the Consultation Proposals.

The 4 Key Themes and Sub Headings under each below are:

THEME A: TERMS OF EMPLOYMENT

– Zero-hour contracts
– Employment Status & Bogus Self Employment
– Dismissal & Re-engagement
– Failure to Notify (Redundancies)
– Pay Between Assignments
– Key Information Document for Agency Workers

THEME B: PAY AND BENEFITS

– Tips
– Payslips
– Working Time Reference Period (*extending to 52 weeks)
– Record Keeping
– Right to Disconnect

THEME C: VOICE & REPRESENTATION

– Workplace Access
– Collective Bargaining: Recognition
– Introduction of Collective Sectoral Bargaining
– Balloting & Notice
– Electronic Balloting
– Protections for Representatives
– Protections for Employees
– Facilitating Productive Workplace
– TUPE Changes
– Public interest Disclosure: Annual Duty to Report

THEME D: WORK-LIFE BALANCE

– Flexible Working
– Carer’s Leave
– Neonatal Care Leave & Pay
– Protection from Redundancy- Pregnancy & Family Leave
– Paternity Leave

Conclusion:

This is a very significant consultation and whilst Employers Federation will be entering a response on behalf of Members, we would also strongly encourage as many businesses and HR professionals to also submit a response. Your views count and your experience is vital to this process. The deadline for responding is 30 September 2024 by 5pm.

We at Employers Federation have arranged a Briefing Session with Members at 10am  on 31 July 2024 to discuss the proposals. If you wish to attend please message info@eefni.org.

SUMMER 2024

LEGISLATIVE UPDATE

1. Changes to collective redundancies- Insolvent Employers

With effect from Monday 1 July 2024, a number of important changes will be coming in relating to collective redundancies.

The Protection of Employment Act 1977, which governs collective redundancy rules, has been amended to:

1. Remove the exemption from notification requirements in respect of collective redundancies caused by the employer’s insolvency. This means all collective redundancies are subject to a 30-day notification period before they take effect, including where the employer is insolvent.

2. Provide that employees may seek redress from the Workplace Relations Commission (WRC) where their employer makes them redundant before the 30-day notification period finishes. This change applies to all collective redundancies, not just those precipitated by insolvency. This is in addition to employees’ existing right to make a complaint to the WRC should their employer fail to consult with or provide information to their representatives.

3. Align the 1977 Act with case law of the Court of Justice of the European Union (CJEU), by explicitly providing that the employer’s obligations must also be complied with by a liquidator or similar appointee, where they are managing the collective redundancy process in an insolvency situation.

4. Provide that, where a liquidator or similar appointee is managing the collective redundancy process in an insolvency situation and they fail to comply with their duties under the Act, the WRC may prosecute them, with a maximum fine on conviction of €5,000.

5. Update the methods by which employers can notify the Minister of proposed collective redundancies.

For more information on the changes being introduced by the Employment (Collective Redundancies and Miscellaneous Provisions) and Companies (Amendment) Act 2024 see here.

2. Increase in rate of Pay for Contract Cleaning Industry

The Employment Regulation (Amendment) Order (Contract Cleaning Industry Joint Labour Committee) 2024 (ERO) came into effect on 1 June 2024 providing for an increase in the hourly rate of pay for the contract cleaning industry.

The Employment Regulation Order (ERO) fixes the statutory minimum rates of pay and other conditions of employment for workers employed in the contract cleaning industry.

As of this date, all workers aged 18 and over in the sector are entitled to a minimum rate of pay of €13.30 per hour.

A full breakdown of the hourly rates of pay are detailed below:

All the terms and conditions from the previous Employment Regulation Order (ERO) are maintained. For more information see Contract Cleaning – Workplace Relations Commission.

3. Review of the Code of Practice on access to Part-Time Working

The Workplace Relations Commission has launched a review of the Code of Practice on access to Part-Time work (SI No. 8 of 2006).

The Code of Practice, which was introduced in 2006, sets out best practices for employers when considering to a request by workers to transfer from part-time to full-time work or to increase their working time should the opportunity arise.

The introduction of a Code of Practice on access to part-time working accords with the principle of minimising the potential for indirect discrimination in relation to part-time working and introduces positive measures to eliminate obstacles and barriers and encourage greater participation in employment on a number of grounds, as set down in the Employment Equality Acts 1998-2004.

The Code seeks to:

• Promote the development of policies and procedures to assist employers, employees, and their representatives, as appropriate, to improve access to part-time work for those employees who wish to work on a part-time basis;
• Promote discussion and encourage employers, employees, and their representatives, as appropriate, to consider part-time work and to address any barriers that may exist;
• Stimulate employers – where consistent with business requirements – to provide wider access to part-time work options;
• Provide a framework and practical guidance on procedures for accessing part-time work;
• Inform those who are interested in part-time work.

New pieces of legislation have been introduced since the Code was published which may impact on its effectiveness for certain employers and employees, such as the introduction of the European Union (Transparent and Predictable Working Conditions) Regulations 2022 as well as the introduction of banded hours of work, provided for by the Employment (Miscellaneous Provisions) Act 2018.

The WRC is inviting submissions from interested parties on the matter to be sent to it on or before 17:00 on Friday, 12 July 2024. There is no set format specified for stakeholders who wish to make a submission to the WRC.

The Association will submit a response to the WRC on behalf of Members. Any Member that wishes to feed into the review should send their submission to kathryn@employersfederation.org by Wednesday 10^th July 2024 to allow sufficient time to formulate a detailed response.  Members are encouraged to detail the points they wish to raise about the Code of Practice and how they have found its operation in the workplace.

For more information on the review of the Code of Practice please see here.

4. The Future of Work- A Review of Labour Market and Workplace Relations Challenges.

The WRC commissioned the University of Limerick (UL), to carry out a piece of research on Work and Employment Transformations in Ireland: A Review of Labour Market and Workplace Relations Challenges. The WRC commissioned the University of Limerick, to carry out a piece of research on Work and Employment Transformations in Ireland: A Review of Labour Market and Workplace Relations Challenges.

The report examines how four key developments – inflation, recruitment and retention challenges, technology (with a particular focus on remote work and artificial intelligence), and climate change – are impacting work and workplace relations in Ireland.

A summary of some of the key interview findings are set out below:

Inflation

Inflation was viewed as having greater priority for employers and workers given its immediate impacts on business costs, incomes, and related, wage negotiations. Inflation was inextricably linked to recruitment and retention challenges with significant pay rises for certain roles with acute labour shortages.

Interviewees expected inflation to be an ongoing issue for the medium term with some business closures and weakened economic growth, but they also expected strong labour market activity in terms of the recruitment intentions of employers.

Recruitment and retention

Interviewees reported a prevailing tight labour market in Ireland with some sectors such as hospitality having particularly severe difficulties recruiting workers. Skills gaps were evident across all sectors but in general, interviewees noted a need for developing digital, interpersonal, and managerial skills. The availability and costs of housing, childcare costs, and cost of living crisis were identified as key challenges in recruiting and retaining workers from within Ireland and from abroad.

International recruitment was identified as a means of addressing labour and skills shortages with the work permit schemes helping to some extent – although concerns were raised whereby certain jobs found it difficult to access the scheme as well as high fees for work permits and inability to bring families to Ireland.

There were concerns about the participation rate of persons with a disability and men over the age of 50.

Technology

There were mixed views on the predicted impact of digitalisation and automation on job quantity. Some interviewees noted that there was little evidence of job loss to date whilst others felt that there was a real threat to jobs. The potential threat to jobs needed to be ameliorated by an emphasis on upskilling/reskilling. Technology and automation are viewed as having the potential to contribute to safer working environments, smarter ways of working, and increased leisure time for workers.

Remote/hybrid working was cited as presenting many opportunities and challenges. There was a concern about the potential for a ‘work life balance privilege gap’ where those working under hybrid arrangements are more likely to have flexible working compared to those who do not work remotely.  Of all the forms of technological change discussed, AI was most frequently cited as likely having the greatest consequences for work.

Issues around GDPR and the potential monitoring of employees’ work raised questions about the suitability of existing legislation for the workplace relations implications of technological change.

Climate change

Interviewees recognised the importance of climate for societies and economies, and that the climate crisis will impact the labour market, jobs, and employment but strategic planning and action have tended to be limited.

There is uncertainty over the wider workplace relations impacts of climate change, and these may take 10-20 years to emerge. Significant changes to the existence and nature of jobs because of climate change is expected and more upskilling and re-skilling is necessary, particularly building-related skills.

Overall, there was no sense that significant conflict will arise from climate change, or from mitigation and adaptation measures, if there is adequate planning for job changes. Conflict is as likely between employers/workers and the state as between workers and employers with the state expected to play a significant role in managing the consequences of climate change.

The full Report can be accessed here.

CASE LAW UPDATE

1. An Employee v A Service Provider to Financial Services

Sick Leave Act 2022

Facts

The complainant employee worked as a customer service adviser at an unidentified service provider to the financial services sector. He was issued with a verbal warning in September 2023 following “a number of unplanned absences” from work that year. The employee stated that his absences were because either he or members of his family were unwell. The employee did not have an underlying medical condition.

The employee said he became “very sick with flu-like symptoms” at work on October 12^th 2023, and went out sick for a day and a half, submitting a doctor’s note to his employer and availing of his statutory sick pay rights under the Act.

After this he was disciplined by the employer and received a written warning based on his level which was upheld in an internal appeal.

The employee asserted that he had been penalised for “exercising his rights under the Act” when his employer issued the warning and that in accordance with the legislation he was entitled to be treated ‘as if he had not been absent’ during a period of statutory sick leave.

The employers’ position was that the worker had been absent six times in ten months, totalling 11.5 days, which it regarded as a “significantly high” level of absence and “beyond what is deemed as an acceptable level of attendance.”

It told the WRC it was “entitled to discipline” the employee, adding that “bad timekeeping” and “unauthorised absence” were listed as misconduct in its disciplinary policies. The company said that it had at all times followed the fair procedures and the relevant statutory code, and denied any breach of the Sick Leave Act.

Decision

The Adjudication Officer (AO)found that the warning issued to the employee in November 2023 was directly “linked to the complainants certified sick leave” on 12^th October 2023 and as such was a breach of the Act. Whilst she accepted the company had followed its attendance and disciplinary policy, she found that by taking into account the worker’s absence on statutory sick leave when it imposed the written warning, the employer was in breach of the legislation.

The employee was awarded 3 weeks’ pay, in excess of €1400, for breach of the Sick Leave Act 2024.

Learning points for employers

This decision will come as a surprise to many employers as it suggests employers will not be able to take action against an employee, or take into account, any absence which occurs during a period of statutory sick leave where the employee is in receipt of statutory sick pay.

When considering the intention of the legislation, we believe that the decision Is wrong and expect that an appeal will be lodged to the Labour Court by the employer.

The WRC decision occurs against the backdrop of doubts as to whether the scheme will be extended as Initially planned. When the scheme was announced in 2022 then-Tánaiste Leo Varadkar said the statutory scheme would expand a worker’s basic entitlement to seven days’ leave in 2025 and 10 days in 2026 – but the further expansion of the scheme is now in doubt.

In answer to questions in the Dáil, Minister of State at the Department of Enterprise, Emer Higgins TD, stated that any further expansion of the scheme in 2025 would be subject to an economic assessment highlighting that the business community have raised concerns about the overall impact of increased labour regulation on the cost of doing business.

On 21 June 2024, the Home Office published an updated Employer’s Guide To Right To Work Checks

The Guide states that the main changes relate to:

1. Right to Work Checks on EEA citizens and their non EEA family members with Pre-Settled Status under EU Settlement Scheme (EUSS) only need completed at the start of employment and do not need repeated.

2. Clarification on follow up checks for holders of Biometric Residence Permits and Home Offices transition to online evidence of immigration status (i.e. eVisas)

3. Clarification on the role of the Department for Science & Innovation Technology (DSIT), within the accreditation process of IDSPs and holding a certificate against a current version of the UK Digital Identity and Attributes Trust Framework (UKDIATF).

4. Application Registration Card (ARC) holders granted permission to work in jobs on Shortage Occupation List or Immigration Salary List. In addition, clarification on follow-up checks of this cohort via the Home Office Employer Checking Service (ECS).

5. Clarification that List A, item 6 of the acceptable documents list also includes consular birth certificates.

Members should ensure that they are using the updated Guide when conducting right to work checks for new employees after 21^st June 2024.

Following the success of our autumn Hearing, we held a further Mock Tribunal Workshop on 5 June 2024 at the Culloden Estate.

Our case on this occasion dealt with allegations of age harassment, sexual harassment, and unfair constructive dismissal.

We were very privileged to be joined by Employment Judge Drennan KC who presided over the case. Two of our experienced solicitor advocates acted for the parties and our full-house of delegates watched the cross-examination of both the Claimant and the Respondent witness.

The Workshop was an excellent practical demonstration of what to expect at Tribunal and the style of cross-examination questions. Employment Judge Drennan KC gave some interesting insights from the perspective of the Judge/panel.

Given the excellent feedback, we hope to run a further in-person Mock Tribunal in 2025.

Employers Federation Employment Law & HR Conference – Wednesday 18 September 2024

We are delighted to announce that Karina Todd of Over The Bloody Moon* will be speaking at our Employment Law & HR Conference demonstrating how an Organisation can implement a Menopause Strategy into their Organisation. This will be a practical and insightful session on a topic that is relevant to all our businesses.

Karina will also bring the MenoVest along as part of her talk which delegates will be able to try during the breaks. The MenoVest^TM is a garment that simulates a few of the most disruptive menopause symptoms that include hot flashes and brain fog. It has been designed to encourage intersectional conversation, engagement, and allyship around menopause. Members may have seen the MenoVest^TM worn by politicians in Westminster and Stormont.

Over The Bloody Moon working in partnership with Employers Federation

After the Conference, and during October 2024, we are partnering with Over The Bloody Moon to roll out a series of in-depth menopause awareness training sessions. These sessions will be aimed at equipping managers in the workplace to be able to confidently support employees experiencing the effects of menopause.

Over The Bloody Moon will be delivering some of their key training programmes at our offices at a special per person rate, rather than their normal Organisation rate.

This will make the training accessible to a wider range of employers as there is no minimum number of delegates required to attend from one organisation. The training will include:

1. Menopause – Advanced People Manager Training
2. Menopause Ambassador Training
3. Menopause Allies Training

Further details of the training at our offices will be circulated over the next few weeks including dates and the special per person rate agreed for Employers Federation events. At this stage, we simply ask an expression of interest into the sessions by emailing info@eefni.org

*Over The Bloody Moon

Over The Bloody Moon (OTBM) is a global menopause training agency with a best practice framework to help organisations become menopause inclusive. Services include award-winning training and experiential learning events, webinars and digital resources. They are the proud recipients of the 2023 Elite Business Award for “Best Menopause Training Organisation.”

NI EXECUTIVE OFFICE COMMITTEE LAUNCHES SURVEY ON EQUALITY LEGISLATION ‘GAPS’

Equality legislation in Northern Ireland falls way in comparison to Great Britain which implemented the Equality Act in 2010.

On 10 June 2024, the Northern Ireland Committee for the Executive Office (which has responsibility for discrimination law) launched a survey to gather views on the differences in equality legislation between Northern Ireland and Great Britain and in comparison to the rest of the European Union.

The Committee is expected to publish a report on its findings and recommendations in early 2025, with further activity to inform its work being done in the interim.

The Committee’s first step is to seek a wide range of views on the gaps in equality laws which it is doing via an online survey that was launched on 10 June and closes on 6 September 2024.

The questions asked in the survey aim to find out what gaps exist in equality protections across the UK, particularly in terms of:

– Disability;

– Race & Ethnicity;

– Gender;

– Sexual Orientation;

– Age.

The Committee also wants to examine any differences between Northern Ireland and the European Union.

In the Autumn, the Committee plans to invite key groups to their meetings to provide their views and/or written submissions to them which will include hearing from the Equality Commission.

This could be the first step in modernising the equality laws in Northern Ireland and ensuring they remain fit for purpose. However other than gather information and formulating proposals, what can actually be achieved by Stormont in its remaining mandate is questionable.

The survey can be accessed here and we would encourage you to complete.

FIRE & RE-HIRE: GB CODE OF PRACTICE COMING INTO EFFECT ON 18 JULY 2024 (28 May 2024)

The Code of Practice (Dismissal and Re-engagement) Order 2024 was passed on 28 May 2024 and brings into effect the new Code of Practice on dismissal and re-engagement

The Code only applies where the prospect of dismissal and re-engagement has been raised by a business with either employee or representative on or after 18 July 2024.

Essentially, Code gives practical guidance on good industrial relations, where a business is considering making changes to one or more employees’ contracts of employment.

It is not a ban but envisages that if employee or their representative do not agree with changes, the business might opt for dismissal and re-engagement.

The Code does not impose any new legal obligations. Like other Codes, a failure to follow the Code is not actionable in itself but such failures can be taken into account in other legal claims. It certain claims a failure could lead to an increase or reduction to the  compensation awarded for those claims.

Again this Code (and Order) applies in Great Britain only.

Labour’s Plans:

Indeed this Code could have a short life. If elected, Labour has stated in Labour’s Plan to Make Work Pay: Delivering A New Deal for Working People  that it intends to replace ‘inadequate statutory code brought in by the Government’, with a strengthened Code. [NB: the detail on what this means remains unclear]

Northern Ireland:

At IoD Northern Ireland Briefing on 28 May 2024 with officials from Department for the Economy Northern Ireland they discussed potential Employment Law Changes. The Department confirmed that fire & re-hire is one of issues that they are currently considering. At this stage the Department is scoping out what should included in the Consultation Document that will lead to an Employment Bill. We can expect to see their Consultation Document issued around summer time.

HOME OFFICE CONFIRMS FURTHER CHANGES TO THE EU SETTLEMENT SCHEME (21 May 2024)

On 21 May 2024, the Home Office confirmed that all those granted pre-settled status under the EU Settlement Scheme will automatically be granted an extension.

In their announcement the Home Office stated that the changes will ensure that citizens can continue to prove their rights easily, and bring greater clarity for those required to check immigration status.

This is to ensure that nobody loses their immigration status if they do not apply to switch from pre-settled to settled status.

The changes are:

1.    An increase in the duration of pre-settled status automatic extensions from 2 to 5 years.

2.    The pre-settled status expiry date will be removed from the digital profiles shown to third parties in online checking services for Right to Work.

3.    Employers will not be required to conduct a further right to work check on pre-settled status holders where the individual remains in their employment.

The changes are being brought about to support the implementation of a High Court judgment in the judicial review proceedings brought by the Independent Monitoring Authority for the Citizens’ Rights Agreements (IMA).