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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:

  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.

TRADE UNION WINS DETRIMENT CASE: SUPREME COURT JUDGMENT

In Secretary of State for Business and Trade (Respondent) v Mercer (Appellant) Case ID: 2022/0080, the Supreme Court held that section 146 of the GB Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) [‘Detriment on grounds related to union membership or activities’] is incompatible with Article 11 (Freedom of assembly and association) of the European Convention on Human Rights (ECHR).

The case centered around the interpretation of TULRCA and whether it could be interpreted to protect employees against detrimental action short of dismissal for taking part in industrial action during working hours. The SC found that TULRCA does not protect workers who take part in lawful strike action from detriment short of dismissal and therefore is incompatible with Article 11 of ECHR.

FACTS

Ms Fiona Mercer (M) was employed as a support worker in the care sector, and was also a workplace representative for UNISON Union. M was suspended from work on basic pay (resulting in a loss of overtime pay) and given a written warning after she was involved in planning and taking part in lawful strike action.

M brought a claim under s.146 TULRCA alleging the suspension was a detriment solely or mainly for the purpose of preventing and/or deterring her from taking part in trade union activities “at an appropriate time” or penalising her for having done so. An “appropriate time” is defined as a time outside of a worker’s working hours, or a time within working hours during which it is permissible for the worker to take part in trade union activities with an employer’s consent or by agreed arrangement.

LOWER COURTS

At first instance, the Employment Tribunal (ET) held that M could not bring a claim under s.146, but went on to consider whether the provision could be interpreted as compatible with Article 11 (right of freedom of association and assembly) of the ECHR. The ET held that TULRCA did not protect against detriment short of dismissal and could not be read in a way to give effect to that protection, meaning that M’s claim failed.

M appealed to the Employment Appeal Tribunal (EAT). The EAT allowed M’s appeal and held that TULRCA could be interpreted as compatible with Article 11.

The Secretary of State for Business and Trade then intervened in the proceedings and successfully appealed the EAT’s decision to the Court of Appeal (CA). The CA held that s.146 TULRCA could not be interpreted compatibly with Article 11 of the ECHR but declined to make a declaration of incompatibility; the CA stated the current law did not protect against action short of dismissal for taking part in or organising industrial action.

M appealed the CA’s decision to the Supreme Court.

SUPREME COURT

The Supreme Court (SC) agreed with the CA that TULCRA did not protect against detriment short of dismissal, because s.146 only covered industrial action outside of working hours.

This lack of protection in essence nullified the right to strike as enshrined in Article 11 and encouraged unfair and unreasonable conduct by employers, placing the UK in breach of its obligations under Article 11 of ECHR. The SC declined to read words into section 146 to make it compatible with ECHR finding that to do so would involve making policy choices that were for Parliament to determine.

However, the Supreme Court exercised its discretion and made a formal declaration that s.146 TULRCA is incompatible with Article 11 as it fails to protect workers from being subjected to any detriment short of dismissal for taking part in lawful strike action. The Supreme Court did note that the right to strike is not an absolute right and that it was now for Parliament to decide whether to enact laws to strike a fair balance between workers’ right to strike and the interests of employers.

CONCLUSION

This is an important win for Unions, and it is now for Parliament to decide if and how enact laws to give effect to the Judgment.  It is important to note that a declaration of incompatibility does not affect the validity, continuing operation or enforcement of the current law. The upshot of the declaration is that if the relevant Minister may order such amendments to be made to the legislation as they consider necessary.

Although workers remain unprotected under the current legislation, employers should be circumspect in subjecting workers to a detriment for taking part in industrial action to avoid being accused of acting in a manner now acknowledged as a breach of workers’ human rights.  As employment law is devolved in Northern Ireland even if in Great Britain they decided not to enact any changes we would predict that our Economy Minister  (who is responsible for employment law) would extend the protection to give effect to the Judgment. This could be part of the expected upcoming Employment Bill.

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

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

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

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

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

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

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

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

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

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

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

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

Commentary

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

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

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

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

 

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

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

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

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

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

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

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

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

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

NORTHERN IRELAND: INCREASE IN TRIBUNAL AWARDS (April 2024)

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

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

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

MAIN ONES TO NOTE:

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

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

 

 

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

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

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

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

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

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

 

What is a Mental Health Emergency?

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

 

Sharing Workers’ Information?

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

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

 

Planning Ahead?

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

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

In terms of what Employers should do, this includes:

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

In terms of what Employers could do, this includes:

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

 

Lawful Basis and Special Category Conditions 

When sharing personal information in a mental health emergency,

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

The lawful basis could be:

  • Vital interests
  • Legitimate interest
  • Legal obligation

Special category conditions could be:

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

 

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

 

Any Organisations requiring advice should contact the Legal Team.