Introduction
The King’s Speech was handed down on 17 July 2024 when King Charles announced the Government’s legislative programme. The programme is heralded by the Government as being mission led and based upon the principles of security, fairness and opportunity for all. During the Speech the King told the Members of the House of Commons that the new Labour Government will introduce 35 new Bills into Parliament. The first one mentioned was the Employment Bill which signals the importance placed on it by the Government. Indeed, the Bill was described by the Deputy Prime Minister, Angela Rayner, who later that day chaired her first Cabinet Committee on the Future of Work, as the biggest upgrade to rights at work for a generation.
Whilst employment law is devolved in Northern Ireland, there is undoubtedly synergy between the UK’s Government plans to prioritise growth across all regions and Northern Ireland’s Economic Vision to increase productivity, address Regional imbalance and increase the number of persons in ‘Good Jobs.’
The Briefing Notes to the King’s Speech 2024 provide some, but not all, of the detail behind the headlines. We have highlighted below some of the proposed new rights and how they compare to the current, and possible future, position in Northern Ireland.
In Northern Ireland there is a ongoing Public Consultation on an Employment Rights ‘Good Jobs’ Bill which closes on 30 September 2024. Some of the areas being considered in Great Britain are also up for consideration in Northern Ireland.
The proposals in Great Britain are set out below along with the position in Northern Ireland:
1. Banning Exploitative Zero-Hour Contracts
Great Britain:
The Labour Government plans to ban Exploitative Zero-Hour Contracts ensuring workers have the right to a contract that reflects the number of hours they regularly work and get reasonable notice of changes in shift with proportionate compensation.
Northern Ireland:
This is also being considered in the current Northern Ireland Consultation. As well as considering an outright ban, there is a proposal to replace zero hour contracts with contracts that provide flexibility and protect workers’ rights. One of the proposals being considered is using a similar model as to the Banded Hours provisions that are in place in the Republic of Ireland. Provisions are also being considered to ban exclusivity clauses (which are already unlawful in Great Britain) and introduce a mechanism for some form of compensation for late cancellation of work hours.
2. Ending ‘Fire & Rehire’ & ‘Fire & Replace’
Great Britain:
The new Statutory Code of Practice on dismissal and re-engagement only came into force on 18 July 2024 and is one of the legacies of the last Conservative Government. It will be a short lived Code, as the Labour Government has committed to repealing it. They state they want to reform the law to provide more effective remedies.
Northern Ireland:
The issue of dismissal and re-engagement is also being considered as part of the Consultation with proposals ranging from: do nothing; introduce a Statutory Code of Practice; or impose a statutory ban. It will be interesting to see if the direction of travel in Great Britain influences Northern Ireland to adopt a more stringent approach.
3. Parental Leave, Sick Pay & Protection and Unfair Dismissal
Great Britain:
The Labour Government announced their plans to make Parental Leave, Sick Pay & Protection from Unfair Dismissal Day 1 Rights.
The removal of the 2 year continuous service requirement in order to bring an unfair dismissal claim, is perhaps one of the most publicised measures and will have a real impact on workplaces. The Government has said that it will still allow dismissals during the probationary period but it is not clear how that will operate.
In terms of SSP, they intend to remove the lower earnings threshold for entitlement to SSP and also remove 3 day waiting period.
Northern Ireland:
In Northern Ireland there is a continuous service requirement of 1 year in which to bring an unfair dismissal claim; there is no proposal to change this.
Whilst SSP is a devolved matter for Northern Ireland, historically we mirror GB changes and could well adopt them here.
There are some proposals looking at Paternity Leave but not Parental Leave
4. Flexible Working
Great Britain:
On 6 April 2024, the right to request flexible working became a day 1 right in Great Britain. Two requests in a 12 month period can now also be made and parts of the statutory process have changed.
The Labour Government wants to go further; rather than a right to request, it intends to make Flexible Working the default position from day 1. The onus will therefore be on employers who will be required to accommodate a flexible working request as far as reasonable.
Northern Ireland:
The current proposal is to make flexible working a day 1 right and essentially bring Northern Ireland in line with the changes that came into effect in Great Britain on 6 April 2024.
5. Enhancing protection to women who are pregnant or have had a baby
Great Britain:
In 2024 the Protection from Redundancy (Pregnancy and Family Leave) Act 2023, and the Maternity Leave, Adoption Leave and Shared Parental Leave (Amendment) Regulations 2024 enhanced the protections afforded in respect of maternity, adoption and shared parental leave for 18 months following birth.
The Labour Government proposes to make it unlawful to dismiss for 6 months after return to work, except in specific circumstances.
Northern Ireland:
The current proposal is to enhance the protection and essentially bring Northern Ireland in line with the changes that came into effect in Great Britain on 6 April 2024.
6. Establishing new Single Enforcement Body, called Fair Work Agency to strengthen enforcement of workplace rights
Great Britain:
This will only apply to Great Britain; it is proposed that this will make it easier to enforce workplace rights.
Northern Ireland:
No such proposals are currently being considered.
7. Sectoral Pay Agreements
Great Britain:
The Labour Government has committed to establishing a Fair Pay Agreement in the adult social care sector. Thereafter, following review, they plan to assess how and to what extent such agreements could benefit other sectors. This type of sectoral pay agreement is effectively a collective agreement that covers all workers in a sector of the economy, whether they wish to be a part of a union or not. It contrasts to private collective bargaining where agreements only cover individual firms.
Northern Ireland:
Sectoral type agreements are mentioned in the current Consultation in Northern Ireland but no proposals are set out. The Consultation is only asking for views on how sectoral collective bargaining could be improved.
8. Trade Union Legislation and Minimum Service Levels
Great Britain:
The Labour Government plans to remove unnecessary restrictions on trade union activity and ensure industrial relations are based around good faith negotiation and bargaining. They plan to introduce a regulated route to ensure workers and union members have a reasonable right to access a union within workplaces.
The Strikes (Minimum Service Levels) Act 2023 came into force (in Great Britain only) on 20 July 2023 and have faced much controversy. The purpose of the legislation is to require trade union workers in England, Scotland and Wales to provide a minimum service during a strike in health, education services, fire and rescue, border security, transport and nuclear decommissioning. The Labour Government has confirmed that it will repeal this law.
Northern Ireland:
Northern Ireland did not introduce similar laws. Indeed in Northern Ireland, as we did not introduce counterpart laws to the GB Trade Union Act 2016, there is less restriction on trade unions.
The current Consultation also wants to further strengthen ‘voice and representation’ in the workplace by fostering strong relationships between workers, employers and government. This includes developing and modernising the framework within which trade unions operate. It proposes doing this through, for example:
- Increasing ability for unions to access workplaces
- Permitting e-balloting
- Decreasing the information and notice required before taking industrial action
- Seeking views on the adequacy of protection for employees against detriment who have took part in industrial action
In terms of the minimum service laws, no such equivalent was proposed or exists in Northern Ireland.
9. Simplifying the Process of Statutory Recognition
Great Britain:
The detail on this is lacking in the Briefing Notes. However the Labour Party Manifesto states they will introduce e-balloting and review the existing thresholds which they say place too high a hurdle in modern workplaces. They plan to remove the requirement in GB (introduced by the Trade Union Act 2016) that trade unions show that 50% of workers are likely to support their claim before the process has begun; this would be amended to only requiring a simple majority for a union to obtain recognition.
Northern Ireland:
As stated above Northern Ireland did not introduce laws similar to the Trade Union Act 2016. The Consultation notes that 65% of business in Northern Ireland fall outside of the threshold for which a union could obtain statutory recognition as they do not employ at least 21 workers. The Consultation seeks views on whether this threshold should be lowered in line with the threshold for monitoring with Equality Commission i.e. 11 or more workers working 16 hours or more per week.
10. Draft Equality (Race and Disability) Bill
Great Britain:
The Labour Government states that the draft Bill will tackle inequality for ethnic minority and disabled people by enshrining in law the full right to equal pay for ethnic minorities and disabled people and introducing mandatory ethnicity and disability pay reporting for larger employers (those with 250+ employees).
Northern Ireland:
Discrimination issues fall outside the remit of the Department of Economy which has issued the ‘Good Jobs’ Bill Consultation. In Northern Ireland, the ability to introduce gender pay reporting is contained in section 19 of the Employment Act (Northern Ireland) 2016 in tandem with the introduction of Gender Pay Gap Reporting Regulations.
Of note, when those Regulations are implemented in Northern Ireland (see below) they will not only require gender pay reporting but also ethnicity and disability reporting. This law and Regulations fall under the responsibility of the Department for Communities which confirmed that the way forward on how this legislation is to be enacted is currently being considered and will be announced in due course.
11. Reform GB Apprenticeship Levy
Great Britain:
The Labour Government plans to reform the apprenticeship levy.
Northern Ireland:
The system for administering the apprenticeship levy is different in Northern Ireland but there is widespread support amongst businesses for reform.
The Minister for the Economy has stated the Department is recalibrating its skills agenda. It has also been recognised that the way the apprenticeship levy currently operates in Northern Ireland is not working – larger businesses in Northern Ireland must pay an apprenticeship levy to the UK Treasury (of circa £80 million) but have no guarantee that Northern Ireland will have any direct benefit.
As the apprenticeship levy is a reserved matter, politicians are making the case that it does not work for our local organisations.
Conclusion
Certainly this is a time of significant change for employment law / HR professionals as we work through these changes in the workplace. Whilst the Labour Government plans to introduce an Employment Bill in the first 100 days (i.e. by 12 October 2024), by the time it goes through the parliamentary process, it is unlikely that any of the new laws and rights will be in force for another 12-18 months (October 2025 or April 2026.) This gives workplaces in Great Britain time to plan and prepare.
Some of proposals are similar to what is being considered in the current Northern Ireland Good Jobs Bill Consultation but undoubtedly the GB proposals go much further.
It will be very interesting to see how far the direction in Great Britain influences the way forward in Northern Ireland.
LABOUR RELATIONS AGENCY ANNUAL REPORT (July 2024)
The Labour Relations Agency has recently published its Annual Report and Accounts 2023/2024
Gordon Milligan, the Chair of the Board stated is his Foreword that the Agency has finally realised its longstanding vision, which is:
‘to be widely recognized As Northern Ireland’s leading authority in promoting productive working relationships for the benefit of individuals and organizations to support the creation of a thriving and inclusive economy.’
The report, which covers performance, governance and accounting issues, states that the Agency has become thought leader and has conducted research in areas including:
- Cost of Conflict
- Building a Business Case for Good jobs
The Agency has also held a number of events such as “Flexible Futures’ and ’10X Reasons (and more) for Good Employment Relations Conference.’
The report highlights how the Agency has been stretched in terms of capacity. Staff have been dealing with increased number of Collective Conciliations (in effort to avoid or stop strikes). The huge number of Tribunal Claims for Holiday Pay and Pension claims (of which there are thousands in the Tribunal) have also absorbed their capacity.
Looking at its future, the Agency is continuing to work on a Good Employment Charter and developing a New Code of Practice on Collective Bargaining, the latter of which will take into account the Minister’s proposals to strengthen the trade unions.
Some of the work conducted by the Agency has also been at a Sectoral level and again this will feed into the Minister’s Economic Vision about gathering evidence to consider the introduction of Collective Sectoral Bargaining.
The above is very much a high-level summary of the report. The Agency however does a tremendous amount of other work which is set out in more detail in its publication, and it is fair to say punches well above its weight for its modest size and resource.
To fully appreciate the extent of the LRA’s role in promoting good employment relations in Northern Ireland, we recommend that you read the report in full.
Equality Commission for Northern Ireland has published its latest Fair Employment Monitoring Report (July 2024)
On 10 July 2024, the Equality Commission published its 33rd 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 33rd 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:
- How to develop Legislative Framework
- The Process for taking Safe Leave
- 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.
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 21st 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 MenoVestTM 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 MenoVestTM 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:
- Menopause – Advanced People Manager Training
- Menopause Ambassador Training
- 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.