Our Annual Employment Law & HR Conference was held at the Crowne Plaza on 27 September 2023.

This year our Conference was fully booked and we were delighted to be joined by so many managers and HR professionals from both Member and non-Member organisations.

Our Conference is our flagship event of the year and it’s a great opportunity for networking amongst the various businesses and to catch-up on a personal level.

Importantly, it is also a day full of learning with lots of insights and practical take aways.

Karen Moore, Head of Training (NI & ROI) welcomed all delegates and opened the day.

The morning session then started with Kathryn O’Lone, Head of ROI & Business Improvement leading us through the most topical cases of the year and providing key learnings for employers. Amongst the variety of cases covered, Kathryn looked at the balancing of competing beliefs in the workplace and the latest decision around menopause in the workplace.

Next we had a very practical “What if” session from Sara Plower, Employment Lawyer dealing with the complex issues that can arise when managing absence such as ‘When can you withhold sick pay?‘ and ‘What if they refuse to attend OH?’

After the mid-morning break we heard from our three external speakers. Sharon Didrichsen is the Founder and Managing Director of Specialisterne NI, an organisation whose aim is to help neurodivergent people secure and sustain rewarding careers. Sharon provided a real insight into how businesses can unlock the potential of neurodivergent persons.

Sarah McKay, Vice President of Service Delivery at Concentrix followed with ESG, ‘What does it mean?’ identifying the why in ‘Why even do it?’ and provided a practical pathway explaining how a business can develop their ESG strategy.

The Federation was then privileged to be joined by Vice President of OITFET, Maxine Orr who delivered a thoroughly engaging session overviewing of the process of Judicial Mediation in NI. The Vice President was able to give us an insight into how it is working, including up to date statistics and experience of the Tribunal to date.

Lunch provided a further opportunity to network and catch-up.

After lunch, Kathryn O’Lone lead us through a panel session with: Helen McCann, HR Manager at Kyocera AVX UK; Bridgeen Mullin, Head of Employee Relations – Senior Vice President, Fintru; Sharon Didrichsen and Peter Bloch, Managing Director of Employers Federation. The panel shared insights and experiences on issues such as diversity, recruitment, industrial action and Artificial Intelligence.

Karen Moore then led delegates through a practical scenario covering requests for anonymity during a disciplinary process.

This was followed by Lorraine Toolan, Employers Federation Consultant who addressed workplace grievances through the lens of whether the employer’s approach is helping or harming.

Finally Michelle McGinley, Director of Legal and Policy ended the day with a review of the policy and legal developments throughout the last year and a look forward into 2024.

We would like to thank all who attended the day and to the exhibitors that included:
Action Mental Health; Autism NI; AWARE NI; Cedar Foundation; Disability Action Northern Ireland; Employers For Childcare; Inspire Therapeutic & Wellbeing Services; The Labour Relations Agency; Parenting NI Charity; PIPS Suicide Prevention Ireland Charity; Rainbow Charity and; Women in Business NI

Worker Protection (Amendment of Equality Act) Act which originated as a Private Members Bill, and received the backing of government, finally passed into law on 26 October 2023, but will not come into force for another year i.e. 26 October 2024.

This Act will only apply in Great Britain and not extend to Northern Ireland, where the provisions on sexual harassment differ. (see below)

The Act places a positive duty on employers to take reasonable steps to prevent the sexual harassment of employees.

How does that differ from the current statutory defence?

The statutory defence allows employers to avoid vicariously liability for the actions of their employees. To avail of the statutory defence, employers must show that they have taken all reasonably practicable steps to prevent the act or similar acts occurring.

For example, if Employee X makes a comment / commits an act of a sexual nature against Employee Y and Employee Y brings a tribunal claim, the employer can avoid liability by demonstrating that it has taken all reasonably practicable steps to prevent Employee X doing that act, or similar acts. The ‘all reasonable steps’ defence is a high threshold and therefore not easy for employers to meet.

If Employee X was also named as a Respondent party in Employee Y’s legal claim, Employee X can also be held personally liable.

Under this Worker Protection Act rather than simply avoiding liability (via the statutory defence) this Act places an additional and positive duty on employers to take reasonable steps to prevent sexual harassment of employees in the course of their employment.

The word ‘all’ has been omitted from the Act, so the duty appears to be at a lower threshold to that of taking ‘all reasonably practicable steps’. How this will differ to the statutory duty to take all reasonable steps remains to be seen.

If a person succeeds in a sexual harassment claim, the tribunal must go on to consider if this duty has been satisfied.

Should the tribunal find that the duty has not been satisfied, it can apply an uplift to compensation awarded by up to 25%, to reflect the extent to which the employer has failed to comply with its duty.

It is important to note that the Act only applies to sexual harassment and not to other protected equality grounds (e.g. race, age, religious belief etc).

The Act originally had provisions to re-introduce third party harassment which were abandoned on its passage through parliament.

Northern Ireland position

As mentioned above, the Worker Protection (Amendment of Equality Act) Act will not apply in Northern Ireland.

There is also a distinction between Northern Ireland and Great Britain regarding liability for acts of harassment by third parties. In Northern Ireland the Sex Discrimination Order 1976 (amendment) Regulations (Northern Ireland) 2008 (which came into force 6 April 2008) provides that employers must take reasonably practicable steps to protect their employees from harassment by third parties (such as clients or customers), where such harassment is known to have occurred on at least two other occasions. In other words, unlike Great Britain we have retained employer liability for third party harassment.

Guidance Update Right to Work Scheme 

We have received an update from the Home Office who have asked us to communicate this message to stakeholders.

The Home Office has updated its Guidance for employers on the Right to Work Scheme to reflect changes brought about by case law in relation to the EU Settlement Scheme (EUSS) and following recent Home Office reforms to the EUSS.

The updated Guidance can be accessed here:

https://www.gov.uk/government/publications/right-to-work-checks-employers-guide

Points of note in this updated guidance include:

• The requirement for employers to verify a digital Certificate of Application (CoA) with the Home Office Employer Checking Service (ECS) when conducting a right to work online check involving an outstanding EU Settlement Scheme application made on or after 1 July 2021 has been removed.

• The reference to Immigration Enforcement 28-day notices in respect of EEA citizens and their non-EEA family members which are no longer in use has been removed.

If you require any further information you contact Home Office:

RighttoRentandRighttoWork@homeoffice.gov.uk

CIPD GUIDE ON TRANSGENDER & NON BINARY INCLUSION AT WORK (30 October 2023)

This is a very helpful CIPD Guide on Transgender & Non Binary inclusion at Work is aimed at people professionals & line manager. It will assist those trying to understand how to support and manage transgender and non-binary inclusion and rights at work. The Guide has been punished as part of CIPD’s equity, diversity and inclusion policy.

The Guide recognises like other areas of EDI, Transgender and Non-binary Equality issues can be complex and sometimes lead to polarising views across a spectrum of beliefs which need to be balanced and managed.

It includes a section of key terminology which can often be misunderstood (e.g cisgender, gender critical and gender fluid).

Contents include:

• Setting the right foundations for EDI in the workplace

• Embedding Policy

• Considerations for transgender and non-binary EDI in the workplace

The Guide contains 4 Appendices:

Appendix A: List of employment tribunal and employment appeal tribunal cases

Appendix B: Inclusive language

Appendix C: What is bullying, harassment and victimisation?

Appendix D: Transitioning at work action plan prompts.

The Guide covers every stage of the employee life cycle, from recruitment through to progression. It sets out the legal considerations and the protected characteristic of gender reassignment and the importance of encouraging inclusive language in the workplace and ensuring privacy.  Appendix D provides practical guidance on how organisations can support employees through a transition and managing different views in the workplace, an issue that has seen increased litigation.

We previously wrote to members regarding an ICO consultation in relation to Employment Practices and Data Protection. That consultation closed on 26 January 2023 and, following the responses received,  the ICO has made the decision not to replace the Employment Practices Code but rather publish topic specific guidance on employment practices and data protection. The first of these Guides have now been published which are:

1. Guidance on Information about workers’ health
2. Guidance on Monitoring in the Workplace

 Further details about these Guides and links are set out below.

 Guidance on Information about workers’ health

One of the first of these Guides was published on 31 August 2023, namely the Guidance on Information about workers’ health  The purpose of the Guidance is to assist employers handle health information of workers in compliance with the GDPR Principles.

The Guidance is divided into 2 main parts:

1. Overview of how data protection law applies to the processing of workers’ health information which is special category data and so stricter requirements apply.

2. How these data protection principles apply to common types of employment practices that process workers’ health information.

In the Guidance, the ICO have adopted a must, should and could approach,  which it explains is to help employers  understand which parts  of the guidance are the must that are (1) mandatory, (2) recommendations and (3) good practice. This approach is adopted in all their Guides.

The Guidance provides a number of a number of practical scenarios pertaining to the management of employees’ health information whilst at work, such as:

• How do we handle sickness and injury records?
• What if we use occupational health schemes?
• What if we use medical examinations and drugs and alcohol testing?
• What if we use genetic testing?
• What if we carry out health monitoring?
• When can we share workers’ health information?

At the end there is also a set of checklists included to give employers an overview and quick guide to help run through their data protection considerations whenever they need to process workers’ health information.

• Checklist: Data protection and workers’ health information
• Checklist: Sickness and injury records
• Checklist: Occupational health schemes
• Checklist: Medical examinations and drugs and alcohol testing
• Checklist: Genetic testing
• Checklist: Health monitoring
• Checklist: Sharing workers’ health information 

Guidance on Monitoring in the Workplace

On 3 October 2023, ICO published its Guidance ICO Guidance on Monitoring In Workplace

The guide recognises that increase in remote working has increased checks on workers and again the purpose of guidance to help employers comply with law if wish to monitor workers.

Like the Health Data Guidance it follows the must, should, could approach

It states monitoring can include tracking calls; messages; keystrokes; taking screenshots; webcam footage and audio recordings; using specialist software to track activity.

If monitor workers, businesses then they must:

1. Making workers aware of nature, extent & reasons for monitoring.
2. Have clearly defined purpose & using it in least intrusive way .
3. Have a lawful basis for processing workers data.
4. Tell workers about monitoring in way that is easily understood.
5. Only keep info which is relevant to purpose.
6. Do a Data Protection Impact Assessment for any data that is high risk to workers’ rights.
7. Make data collected through monitoring available in Subject Access Request.

The Guidance gives overview of data protection law and considers specific monitoring practices e.g. use of biometric data to monitor timekeeping and attendance.

The contents includes (not limited to):

• What do we mean by monitoring workers?
• How long should we keep information obtained from monitoring workers?
• What must we tell workers about our monitoring?
  Can we use covert monitoring?
• Can workers object to being monitored?
• What do we need to consider if we use a third party provider or an application provided by a third party to carry out monitoring?
• What do we need to consider if we transfer personal information of workers OUTSIDE UK?

At the end there are Checklists that business can use to assess compliance with the Guidance.

Event Brochure 2023

Our event brochure for the second half of 2023 can be Download Here

Our programme covers a variety of key employment topics with courses designed for HR professionals and also managers who deal with employment relations issues.

Early booking is recommended to secure a place.

PERSONAL DATA BREACHES, PSNI & EMPLOYER’S LEGAL RESPONSIBILITIES

The PSNI personal date breach of 8 August 2023 was rightly reported as headline news. The personal data discloses included the names of all serving polices officers and staff that were reportedly published online and available to the public for a 2 ½ hour period between 14.30 -17.00 hour on that date.

It is reported that the breach occurred as part of a response to a Freedom of Information request and from all accounts appears to have been a human error.

This is a huge a security issue for any business but of grave concern for the PSNI, in which there is a potential risk to life as a result of the breach.

There will be many questions to be answered by the PSNI as to how the breach occurred and what systems it had in place to prevent such breaches and deal with them when they occur. The PSNI has already stated that some improvements have been identified to prevent a similar breach occurring again. It is a timely reminder to all business to check their policies and procedures that apply in circumstances of a personal data breaches and audit their processes /systems again to minimise the risk of human error cauing a breach.

How employers respond if and when a personal data breach occurs? The action taken should include the following:

1. For the PSNI this breach is one that must be reported to the ICO within 72 hours as it is “likely to present a risk to the rights and freedoms of individuals.”

   An internal record should also be made of the breach.

   The ICO Guide (see below) provides details about when a report should be made and what information should be included in any report.

2. PSNI should also be contacting all persons named without undue delay, which the news is reporting they have done. The communication should include guidance on what the person can do to protect their personal data.

3. We know that the information has been removed and again in similar circumstances employers should take steps to ensure the information i deleted, if possible. We have seen PSNI publicly announcing the breach and asking persons to delete the information if they have it and that they are continuing their investigation into how wide the breach was.

4. Organisations need also consider notifying other parties affected such as customers.

5. PSNI would be expected to have a process and/or policy setting what they should do in the event of a personal data breach. Indeed, it is a good time for Organisation to examine their investigation and internal reporting procedures that they have in place for when breaches occur. see ICO ‘Preparing for a personal data breach”.

6. Importantly, the ICO will also want to examine the processes and protections the Organisations had in place to prevent the breach in first place.

In this scenario, in time you might expect the ICO to use its powers to issue a penalty notice, enforcement notice, information notice etc.

The ICO Personal Data Breaches Guide explains employer’s responsibilities if they find themselves in similar circumstances. The Guide covers:

• What is a personal data breach?
• Risk-assessing data breaches
• When do we need to tell individuals about a breach?
• What information must we provide to individuals when telling them about a breach?
• What breaches do we need to notify the ICO about?
• What role do processors have?
• How much time do we have to report a breach?
• What information must a breach notification to the ICO contain?
• What if we don’t have all the required information available yet?
• How do we notify a breach to the ICO?
• Does the UK GDPR require us to take any other steps in response to a breach?
• What else should we take into account?
• What happens if we fail to notify the ICO of all notifiable breaches?

The Guide is very user friendly; any Company will any concerns or queries should contact the Legal Team.

NORTHERN IRELAND RESEARCH PROJECT: IMPACT OF PARENTAL LEAVE POLICIES ON LABOUR MARKET (24 July 2023) 

Queen’s University has recently published its  Research Findings assessing the impact of Parental Leave policies on different labour market outcomes for men and women following the completion of 12 consequential waves of research using the UK longitudinal study (201-2021).

The research was commissioned by the Department of Economics against a backdrop of an ageing population and a declining replacement level (the overall fertility rate required for a country’s population to exactly replace itself from one generation to the next) and the impact of this, from an economic perspective, for a country to meet the growing demands of his older population.

The increasing economic activity and employment rates for women in the last half a century has resulted in women having less children, or having children older, and has created a tension between labour market participation and childbearing, with Northern Ireland (and the UK) where gendered parenting norms prevail.

Parental Leave Policies are therefore of significant importance in trying to reconcile this tension and maintain and increase female participation in the workplace, whilst at the same time ensure the replacement level does not exponentially decline.

The aim of the research was to assess the relationship between parental leave and key demographic characteristics and labour market outcomes.

The research investigated three main issues namely:

1. Main determinants of taking Parental Leave and its duration.

2. What influences the decision to switch to part-time employment as a coping strategy to combine work and family responsibilities.

3. How taking Parental Leave impacts on wages.

FINDINGS INCLUDE: 

Unsurprisingly, the findings support much of the existing empirical literature.

1. Main determinants of taking Parental Leave and its duration:

Married parents are more likely to take Parental Leave than single parents with parents in government job or the NHS more likely to take it than those working in private sector companies. This is most likely to be because of enhanced occupational parental leave policies and financial dependability with married couples as well as the perception that taking parental leave is less likely to have an impact on career progression in public sector employment than in the private sector.

Pay, unsurprisingly, was found to have a direct impact on the taking of leave, with higher pay resulting in shorter periods of time off. Higher pay creates the incentive to return to work sooner after childbirth as the impact of reduced pay is more likely to have a greater impact than those with lower earnings.  For women, higher pay also acts to reduce likelihood they will extend maternity leave beyond the paid period of 39 weeks.

The effect of pay on taking leave, is stronger for men than women, perhaps suggesting men are more likely to take parental leave when have higher pay & career stability, whereas this doesn’t seem to apply for women.

2. Women are more likely to go Part Time than men.

Again, reflecting both the anecdotal and statistical research within recent time, the study found that part time work is a common strategy that mothers use to facilitate work with childcare and feeds into the calls for a dedicated childcare strategy for the region.

The data also indicated that older mothers are less likely to switch from Full to Part time employment after a period of leave, as are mothers with higher pay. This is most likely because women with greater financial resources can pay for childcare to return to work on a full-time basis.

This again reinforces the much-debated issue that the lack of affordable childcare acts as a barrier for lower-earning and younger mothers to return to full-time.

Given that part-time employment negatively impacts or ‘scars’ women future career progression and labour market outcomes, this has implications for both the gender pay gap and the pay gap between mothers who do return to work full-time and those who don’t.

3. How Parental Leave impacts wages

Finally, the research explored what impact, if any, the taking of parental leave had on wages and whether the duration of the leave also played a part.

For mothers, it found that the wage penalty of taking parental leave is only evidenced for mothers who take more than 39 weeks leave. Previous studies found that that periods of short or moderate leave have no effect on female earnings, but lengthier leaves are associated with substantial wage reductions.

CONCLUSION 

Northern Irish economy faces persistently high levels of economic inactivity, and female employment is lower compared to the rest of the UK. 

There are strong arguments in favour of parental leave policies: proponents will argue that parental leave can promote healthier children, improve the position of women in the workplace, help households address the increasing conflict between work and family, and promote within-family gender equality in terms of labour market attachment. Support for parental leave will also feed into the governments key policy considerations for addressing the declining population level.

The key component in achieving a greater uptake in parental leave is designing it in way as to not detrimentally affect mothers’ labour market outcomes after leave has ended.

Overall, it finds of fundamental importance to the success of parental leave polices is generosity (financially) and length so that it can achieve the social and economic goals.

The Research also recommends that future research on effect of Shared Parental Leave.

Changes to Flexible Working Requests (July 2023)

The Employment Relations (Flexible Working) Act 2023 has now passed through all stages and received Royal Assent on 20 July 2023.

In its Press Release the Government stated ‘As well as clear benefits to workers, the measures are also good for British business. Research has shown companies that embrace flexible working can attract more talent, improve staff motivation and reduce staff turnover – boosting their business’s productivity and competitiveness.’

It is expected that the measures in the Act and secondary legislation will come into force in a year’s time, to give employers time to prepare for the changes and likely to be in and around April 2024.

What changes

When in force it will change the current flexible working provisions in Great Britain by:

1. Expressly allowing flexible working applications to request changes to Working Hours, Times or Location.

In reality most business accepted allowed applications to be made on these grounds.

2. Allow two applications to be made in any 12-month period.

Currently only one application is allowed in any 12-month period. 

3. Providing that employees do not need to explain effects of changes, nor do they need to explain the impact that granting the request would have on their role and how that might be dealt with.

Currently employees need to detail this in their application.

4. Applications cannot be refused without consultation with the employee.

Currently employers only need to discuss the request with the employee; at present there is no detail about the quality of consultation that will be required which may be fleshed out in secondary legislation.

5. Decisions must be issued within 2 months.

Currently the period is 3 months.

Commentary 

It was anticipated this would be a Day 1 Right. However, under the law as currently drafted employees still currently require 26 week’s service to be eligible.  The Government has indicated this will be introduced through separate, secondary legislation, but no date has yet been provided. The new laws are not expected to take effect until 6 April 2024, with further details to be contained in forthcoming regulations (not yet published).

The law will only apply in England, Wales & Scotland and with the continuing the stalemate at Stormont it is further serving to widen the gap in laws between NI and the rest of GB.

ACAS Consultation on update Code of Practice on handling requests for flexible working

In conjunction with the legislative changes detailed above, ACAS (the equivalent of the LRA in GB) has launched a Consultation on Updates to its Code Of Practice on handling requests for flexible working-  Consultation on Updates to its Code Of Practice on handling requests for flexible working

The purpose of that Consultation is ‘to provide employers, employees and representatives with good practice advice on how the new flexible working rules should work in practice. Statutory Codes of Practice are not legally binding, but they are taken into account by courts and employment tribunals when considering relevant cases.’

The ACAS Consultation closes on 6 September 2023.

Strikes and Use of Agency Workers

On 13 July 2023, the High Court handed down its Judgment of R (ASLEF and others) v Secretary of State for Business and Trade [2023] EWHC 1781 (Admin), which quashed the Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022.

These Regulations had allowed employment agencies in Great Britain to supply workers to cover employees on strike. The Regulations were challenged to the High Court by thirteen different unions by way of a judicial review.

The challenge was on two grounds, namely:

1. The Government failed to comply with its statutory duty to consult before making the 2022 Regulations (“Ground 1”).

2. It was contended that, by making the 2022 Regulations, the Secretary of State had breached his duty under Article 11 of the European Convention on Human Rights (“ECHR”) to prevent unlawful interference with the rights of trade unions and their members (“Ground 2”).

In a fifty-page Judgment, Mr Justice Linden allowed the challenge to proceed on Ground 1 only, finding that there was inadequate consultation.

The High Court declined to comment on Ground 2, i.e. whether  the Regulations had breached Article 11 of the European Convention on Human Rights, stating amongst other points that:

• any comment the Judge would make would be obiter; and
• if consultation were to be carried out, the basis of the evidence as it currently stands could change and would potentially lead to further complication and/or the Judge’s decision might well prove to be redundant.

This Judgment will be welcomed by Employment Agencies who were placed in an invidious position. The Recruitment and Employment Confederation (who are the voice of the recruitment industry) did not support the Regulations and spoke out against them when they came into force. However, it may not be the end of the line for the Regulations; and if government remains intent on bringing them into force then they can now either consult on the Regulations or appeal the Judgment.

As employment law is devolved, the Regulations never applied to Northern Ireland and even if Stormont is restored we doubt that anything similar would be brought in here.