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Our annual Employment Law & HR Conference was held on 18 September 2024 at the Crowne Plaza, Belfast and once again was a sold-out event.

The return of Stormont, the new Labour Government, and the ongoing public consultation into Domestic Abuse Safe Leave and the Good Jobs – Employment Rights consultation, meant there was a lot to talk about.

As always, delegates heard from the Legal Team as well as a number of guest speakers throughout the day.

What did we cover?

  • Top Employment Cases of the Year
    Kathryn O’Lone of Employers Federation delved into the most impactful employment law cases of 2024, including three from the Supreme Court. These insights provide HR professionals with valuable and practical perspectives on how these decisions may impact the workplace

 

  • Navigating the Disciplinary Process
    Sara Plower of Employers Federation guided delegates through the more complex aspects of managing disciplinary processes, helping organisations to put themselves in the best position to defend possible unfair dismissal proceedings

 

  • AI in the Workplace
    We were delighted to have Kathryn Harkin, Head of AI in FinTrU, share her expertise on the integration of AI in the workplace and HR processes. The lasting message was to remember the human remains responsible at all times. Additionally, we launched our AI Policy at the Conference, providing each delegate with a template to tailor for use in their business’s

 

  • Domestic Abuse & the Workplace
    Sonya McMullan, Regional Services Manager for Women’s Aid Federation NI, discussed the critical role of employers in supporting employees’ experiencing domestic abuse. This profound session highlighted the resources available to both employers and employees. This was timely with the imminent introduction of the Domestic Abuse (Safe Leave) Act and the Executive office having launched their Ending Violence against Women and Girls Campaign on 16 September 2024

 

  • Top Discrimination Cases of the Year
    Karen Moore of Employers Federation reviewed the most notable discrimination cases of the past 12 months, including a detailed exploration of the concept of “discrimination by ricochet.” Delegates were provided practical tips and recommendations to help ensure compliance with equality laws which can be an ever-changing and complex area of practice

 

  • Good Jobs Employment Rights Public Consultation
    Colin Jack from the Department of Economy Northern Ireland provided an overview of the ongoing Public Consultation on the Good Jobs Employment Rights Bill, identifying the Department’s key priorities and encouraging active participation in the ongoing consultation

 

  • Panel Session
    Our panel session is thoroughly embedded as a Conference favourite and, following an excellent 2 course lunch, delegates enjoyed listening to the perspectives of our panel members on the proposals contained in the Good Jobs Bill. Michelle McGinley of Employers Federation facilitated the discussion. The panel included Peter Bloch of Employers Federation, Patrick McAuley of Seagate Technology, Tracy Blacker of Almac and Barbara Henry of Caterpillar NI who each provided valuable insights. Patrick also wore the Over the Bloody Moon Menovest throughout the 45 minute session before giving feedback on the experience

 

  • Menopause in the Workplace
    Karina Todd of Over the Bloody Moon addressed the challenges and support needed for employees experiencing menopause. The session also featured the innovative Menovest and her upcoming training programme with Employers Federation

 

  • Planning for the Future
    We wrapped up with Michelle McGinley of Employers Federation offering strategies on how to prepare for forthcoming changes in employment laws

 

As always, throughout the day we gave away some fantastic prizes. Our Conference is a great networking event and plans are already underway for 2025.

Thank you once again to all who attended we really do value your support.

 

From 26 October 2024, the Worker Protection (Amendment of Equality Act 2010) Act 2023  places a new positive duty on employers in GB to take reasonable steps to prevent sexual harassment at work. All employers in GB must comply with the new duty irrespective of size. Whilst this positive duty does not apply in NI, the Guidance set out below is useful for employers in both jurisdictions.

Employers have for a long time been familiar with the reasonable steps defence to allegations of harassment. Whilst the language in the Act draws on this wording, there is now a real change of emphasis with employers required to be much more proactive and to take positive steps to prevent sexual harassment.

Accompanying this new law, the Equality and Human Rights Commission (EHRC) has published  Sexual harassment and harassment at work: technical guidance. The Guidance covers the employer’s positive legal duty to take reasonable steps to prevent sexual harassment of its workers (the ‘preventative duty’) and sets out steps to take to avoid discrimination: These steps fall into 3 categories: those that must be taken; those that can be taken; and those that should or could be taken as matter of good practice.

Separate to the Guidance the EHRC has also published Employer 8-step guide: Preventing sexual harassment at work which is described further below.

Employer 8-Step Guidance

  1. Develop an effective anti-harassment policy: Ensure your equal opportunities and Dignity at Work policies and procedures are up to date and have been communicated to everyone. Your policies should make clear that your organisation takes a zero-tolerance approach to all forms of harassment, including sexual harassment. The 8-step plan explains in detail what a ‘good’ policy will contain;
  2. Engage your staff: you should conduct regular 1-2-1, staff surveys and exit interviews and use these to help understand where any potential issues lie;
  1. Assess and take steps to reduce risk in your workplace: undertaking a risk assessment will help comply with the proactive duty.

You should try to anticipate scenarios in which your workers may be subject to sexual harassment in the course of employment and take pre-emptive action to prevent such harassment taking place.

Possible factors to consider include:

  • Where are the power imbalances?
  • Is there a lack of diversity in your workforce?
  • Is there job insecurity for a particular group or role?
  • Are staff working alone or at night?
  • Do your staff have customer-facing duties?
  • Are customers or staff drinking alcohol?
  • Are staff expected to attend external events, conferences or training?
  • Do staff socialise outside of work?
  • Do staff engage in crude or disrespectful behaviour at work?
  1. Reporting: Consider using a reporting system that allows workers to raise issues and keep centralised, confidential records of all concerns both formal and informal;
  2. Training: Provide specific training for managers to help them identify acts of harassment, what to do if they witness it and how to handle any concerns.

Ensure all employees know the standards expected of them via awareness training. Employees should not only be trained on what constitutes sexual harassment, but also on the steps they can take if they have any concerns about behaviours they are experiencing or have witnessed;

  1. What to do when a harassment complaint is made: this includes acting immediately to resolve the complaint, taking into account how the worker wants it to be resolved; protecting the complainant from ongoing harassment and always communicate the outcome of the complaint and outline any appeals process to the complainant in a timely manner;
  2. Dealing with harassment by third parties: Whilst not part of the legal obligation in GB (see below) this step specifically refers to industries where third-party harassment from customers is more likely and states that workers should also be trained on how to address these issues and employers should take steps to prevent it and have reporting mechanisms;
  3. Monitor and evaluate your action: this includes reviewing complaints, surveys and policies, procedures and training regularly. It also recommends holding ‘lessons learned’ after any complaints of sexual harassment.

Other steps include ensuring your senior leadership team is fully engaged with the positive steps your organisation is taking.   Consider also having Dignity at Work Advisors; workplace peers who are trained to provide support and guidance to employees who have a concern about workplace behaviours

Tribunal awards and other enforcement powers

Employment Tribunals in GB will have the power to uplift the compensation awarded in sexual harassment cases by up to 25% if they find that an employer has failed to comply. The EHRC also has broad enforcement powers, including powers to investigate and require an employer to enter into an agreement to take certain steps to prevent sexual harassment in exchange for the EHRC refraining from using its other powers.

Harassment by third parties

This is one area in which the law in NI and GB differs significantly.

In NI an employer is liable if it knows that an employee has been harassed (on any protected characteristic ground) in the course of their employment on at least two other occasions by a third party, and not taken reasonable steps to prevent it from happening to the employee again.

The Equality Act 2010 in GB does not contain a similar provision. However the EHRC’s updates to its technical Guidance state that ‘in addition to the prevention of worker-on-worker sexual harassment, the preventative duty includes a duty to prevent sexual harassment by third parties‘.

The EHRC’s Guidance and 8-step action plan therefore include a new duty to prevent harassment by third parties. The EHRC’s list of who can count as a third party is also broad; this could include customers, clients, service users, patients, friends and family of colleagues, delegates at a conference and/or members of the public.

This means that, as an employer, you should be considering the risk of your workers coming into contact with third parties and the likelihood of sexual harassment occurring in those situations, and then taking reasonable steps to prevent such harassment from occurring in those scenarios.

Conclusion

Although the wording of the duty is the same as the old reasonable steps defence, there is no doubt that this new preventative duty is more onerous. Employers will be expected to do much more to succeed in any statutory defence that they have taken all steps reasonably practicable to prevent the act or acts of a similar nature occurring. Up until now the detail of the steps that must be taken were provided for in case law; the EHRC Guidance and 8-step plan, demonstrates what can be expected.

As stated above this new duty applies in GB only and does not extend to NI as employment law is devolved here. At present we are unaware of any plans to introduce similar laws in NI, however the Guidance produced by the EHRC is useful across both jurisdictions.

The NI Executive Office (which has responsibility for discrimination matters) has recently completed a call for evidence on the differences in discrimination law between GB and NI this may be an area that is considered. Furthermore the Executive has recently published its draft Programme for Government 2024-2027 ‘Our Plan: Doing What Matters Most’ in which one of the immediate key priorities is Ending Violence against Women and Girls. Therefore this could well be an area considered.

On 12 September 2024, in the case of Tesco Stores Ltd v USDAW and Others [2024] UKSC 28, the UK Supreme Court unanimously allowed an appeal brought by USDAW (the Union) on behalf of employees and restored an injunction preventing Tesco from firing and rehiring employees for the specific purposes of depriving them of Retained Pay (RP) as it was agreed that RP was a permanent benefit.

The appeal raises fundamental questions about an employer’s right, under contract law, to terminate a contract of employment by giving notice and the remedies for breach of employment contract.

Background

RP was a financial contractual entitlement that was agreed between the Union and Tesco to be a permanent benefit.

In 2007, Tesco closed some Distribution Centres to incentivise existing employees to relocate. Tesco and the Union collectively agreed to provide RP to employees that agreed to relocate.

As this RP was agreed via a collective agreement, the right to RP was then incorporated into those employees’ contracts of employment as an express term.

The RP clause stated that RP would “remain a permanent feature” of an employee’s contractual entitlement, subject to certain qualifications.

A separate clause gave Tesco a contractual right to dismiss employees without cause, on notice.

In 2021, Tesco offered to buy out the right to RP. Tesco informed employees that, if they did not agree to the removal of the RP term, they would be dismissed and offered re-engagement on identical terms, but with no RP term

Some employees refused to accept the offer; the Union then successfully applied to the High Court for an injunction to restrain Tesco from terminating their employment for the purposes of removing their right to RP.

Tesco appealed to the Court of Appeal, who overturned the High Court’s decision to impose an injunction.

Supreme Court (SC)

The SC unanimously restored the injunction and, by virtue of doing so, have restrained Tesco from terminating employees for the purposes of removing their right to RP.

The SC held the employment contracts contained a term implied by fact meaning

Tesco’s right to terminate could not be exercised to deprive employees of their right to RP.

In arriving at that decision, the SC started by interpreting the express RP term.

The SC rejected Tesco’s argument that the RP term simply meant that the RP  entitlement was only “permanent” for the contract duration and was subject to Tesco’s unqualified right to dismiss on notice.

The SC stated that such an interpretation would give no substance to the express promise that the entitlement is  “permanent”.  The correct interpretation of the RP clause was that it would continue for as long as the employee remained employed in the same role, subject only to the qualifications stated within the clause.

Indeed, the SC acknowledged that the right to RP was deprived of  value if Tesco could at any time unilaterally terminate the employment; therefore, the right to dismiss was qualified by an implied term not to dismiss in a way that would deprive employees of the right to RP.

The SC found it ‘inconceivable’ that the parties’ objective mutual intention was that Tesco could unilaterally dismiss to deprive these employees of the right to RP.

Importantly, the SC noted that Tesco’s right to dismiss for any other reason was entirely unaffected by this implied term. The SC drew an analogy to employees with entitlement to Permanent Health Insurance (PHI) benefits and the implied term that employer was restrained from dismissing to deprive them of PHI.

On remedy, the SC recognised that an injunction would amount to indirect specific performance of Tesco’s obligation to continue to employ the employees on RP.  Whilst the general rule is that specific performance will not be granted: (i) of an employment contract; or (ii) where damages are an adequate remedy, this was an exception to that rule. Here, the SC found that damages would be inadequate and, as there was no breakdown of trust and confidence between Tesco and the employees, the contract could continue. In those circumstances, the injunction was granted.

Commentary

This is a reminder that any contractual term is underpinned by implied obligations by law and fact. Here, the implied obligation that had arisen out of the facts was to not act in a way that deprived the employee of a benefit which they were entitled to. It demonstrates the willingness of the Supreme Court to stand back and assess the reality of the situation. Here it was ‘inconceivable’ that when RP was agreed that the parties intended that Tesco could unilaterally terminate their contracts at any time to deprive them of this permanent benefit to RP.

It is also a noteworthy development from the SC that by issuing the final injunction it was thereby preventing Tesco, a private sector employer, from dismissing an employee for an indefinite period if the purpose of the dismissal is to remove the RP benefit. It may well be the case that we will see more claims for specific performance in breach of contract claims with arguments being made that compensation is an inadequate remedy.

This is another case that casts a bad light on the use of fire and re-hire. This is so when both Northern Ireland and Great Britain are looking at strengthening the rights of workers that includes curtailing the use of fire and re-hire.

Judgments from the Supreme Court (SC) are like buses – you wait for one, and then two come along at once. On 16 September 2024, in HMRC v Professional Game Match Officials Ltd (PGMOL) [2024] UKSC 29, the SC delivered a significant judgment on employee status, addressing the question:

“Is the relationship between a company responsible for providing football referees to the Football League and part-time referees an employment relationship, thereby obligating the company to deduct Income Tax and National Insurance from the payments it makes to the referees?”

Background

In the United Kingdom, there are currently three categories of persons for employment rights purposes: employees, workers, and the self-employed. However, for tax purposes, only two categories are recognised: employees and the self-employed. This judgment concerns tax, but its principles can be applied more broadly.

Facts of the Case

The case involved part-time referees for First and Second Division football matches supplied by Professional Game Match Officials Limited (PGMOL). HMRC had classified these referees as employees. This finding was subject to appeals that centered on the classic employee status tests:

  1. Mutuality of Obligation: Was there an obligation for the referees to provide personal service and for PGMOL to provide work?
  2. Control: Did PGMOL have a sufficient degree of control over the referees?
  3. Other Circumstances: Were all other surrounding circumstances and the contract consistent with employment?

Supreme Court’s Judgment

In examining the facts, the SC noted that the referees were:

  • Appointed on an annual basis.
  • Match appointments for the weekend were usually offered on the Monday.
  • Referees could refuse appointments, although they were typically asked for a reason if they cancelled.
  • Once accepted, referees could back out before arriving at the match, generally only doing so for illness, injury, or work commitments.
  • Similarly, PGMOL could cancel appointments at any time.
  • When accepted, a contract was formed to officiate and complete a match report.
  • PGMOL would pay the fee.
  • There were no sanctions on either party for cancelling.

This case underscores the importance of examining the mutuality of obligations, control, and overall circumstances to ascertain whether an employment relationship exists.

Implications and Future Considerations

This is the latest in a long line of cases focussing on what constitutes an employee. The landmark case of Uber BV and others v Aslam and others UKSC 2019/0029 changed the emphasis. Since then we have seen a willingness from courts and the SC to find employee status, perhaps lowering the threshold required to establish sufficient mutuality of obligations and control. This trend indicates a broader interpretation of employment relationships, potentially offering more protections to individuals previously classified as self-employed or workers.

However, this case may have less significance in the future if proposals to move to only two categories of persons – employees and the self-employed – are accepted. Such a change would simplify the classification process but could also impact the rights and obligations of many individuals currently classified as workers.

 

 

Employment law is devolved in Northern Ireland and it is Stormont’s responsibility to determine what rights are in place. It is widely recognised that we are long overdue a review of our legislation, not least if the intent is to keep pace with developments in GB and ROI. In recognition of the need for reform, on 1 July 2024, the Department for the Economy launched its very ambitious ‘Good Jobs’ Employment Rights Bill Consultation – which in some respects is a ‘catch up’ with our counterparts but it also paves the way for more significant changes further down the line.

On Friday 30 August 2024, Michelle McGinley, Director of Legal & Policy and Kathryn O’Lone, Head of ROI and Business Improvement held a Briefing Session, in a partnership with Manufacturing NI, providing an overview of the Consultation’s content and sharing insights on what maybe taken forward. We were also joined by Stephen Kelly, CEO for Manufacturing NI.

It is vital that the business community’s voice is heard in the Consultation responses. If you were unable to join us you can watch the webinar through the link – https://youtu.be/HcWrW307Go8

Please do feel to contact either Michelle or Kathryn if you have any comments/questions on the Consultation

LEGAL UPDATES

Implementation of the Employment Permits Act 2024

The new Employment Permits Act will come into force today, Monday 2nd September 2024.

This Act consolidates and modernises employment permits law and will apply to non-EEA nationals who wish to take up eligible employment and residence in the Republic of Ireland.

Main provisions of the Act

The Employment Permits Act 2024 will introduce a number of changes to the existing system, including:

  • the introduction of a Seasonal Employment Permit, based on strong labour rights, which will support the seasonal needs of certain sectors.
  • the ability to change an employment permit to a new employer after nine months to allow for better opportunities for workers and improve working conditions.
  • moving operational details, such as the requirements of the Labour Market Needs Test to secondary legislation, which will allow the system to adapt quickly to changes in the labour market.
  • requiring additional conditions such as training and accommodation support for employment permit holders, which will make Ireland a more attractive destination.
  • allowing for non-consultant hospital doctors to have a permit which will allow them to work at multiple sites, which will help to further streamline the system.
  • allowing permit holders to be promoted within their roles without the need for a new permit.

Seasonal Employment Permit

The new Seasonal Employment Permit is a short-term employment permit which will allow the permit holder to work for a maximum of 7 months per calendar year in a seasonally recurrent employment. It is designed to support targeted economic sectors, such as horticulture and agriculture, in addressing labour shortages and will be renewable across multiple years for the set calendar season. Arrangements for the provision of accommodation and health insurance will be included in the scheme. The permit will be first introduced under a limited pilot scheme later this year with the intention that it commence in early 2025.

Change of employer 

The Act introduces a new provision allowing certain employment permit holders to change their permit employer to another employer after a period of nine months has elapsed.

  • The change of employer applies to the General Employment Permit (GEP) and the Critical Skills Employment Permit (CSEP).
  • The holder of a GEP can apply to change to an employer within the type of employment for which they have been granted a permit.
  • The holder of a CSEP can change to an employer across a broader category of employments, for example, different engineering roles. This is because there is a high demand of these skills in the Labour market.

Progression within the role

The Act aims to improve the status and employment opportunities of permit holders by including a provision to allow for promotion and internal transfer in the same company where a permit holder would use the same skills, thus removing the requirement for the permit holder to undergo a new employment permit application process should this situation arise.

Modernised Labour Market Needs Test

The Act also addresses the inflexibility inherent in the Labour Market Needs Test, which requires that a role be advertised across the EEA and in print media prior to a permit being sought. The new Bill will simplify the process by requiring employers to publish vacancies online only and will reflect modern advertising practices.

The Department of Enterprise, Trade and Employment has published additional information in relation to the 2024 Act which is available here

A copy of the of the Employment Permits Act 2024 Is available here

CASE LAW UPDATES

ADJ-00037668

Matt McGranaghan (Complainant) V MEPC Music Limited

Unfair dismissal, failure to pay notice pay, failure to pay holiday pay, failure to compensate for Sunday working

Background

This case is of particular significance to employers as it is the first WRC decision on employment status since the Supreme Court handed down its judgement in The Revenue Commissioners v Karshan Midlands t/a Domino’s Pizza in October 2023. You will recall from our update here  that the Supreme Court found  Domino’s Pizza delivery drivers in this case (which is a tax case) ought to be treated as employees and not as independent contractors.

The decision of the Supreme Court was the final instalment in a long series of adjudications which originated in the Tax Appeals commission.

Legal arguments centred on the key components required to demonstrate employee status, with mutuality of obligation central to the arguments. This principle being that an employer is obliged to offer, and an employee is obliged to accept, any work.

However, the Supreme Court took the view that the term ‘mutuality of obligation’ has ‘generated unnecessary confusion’ and should be ‘avoided’ going forward; removing the notion that mutuality of obligation is a decisive or determinative factor in establishing employee status.

The Court reiterated the importance of considering all the circumstances to identify features that are consistent with an employment contract or a self-employed/independent contractor, and considered the following five steps as being determinative:

  1. Does the contract involve the exchange of wage or other remuneration for work?
  2. If so, is the agreement one pursuant to which the worker is agreeing to provide their own services, and not those of a third party, to the employer?
  3. If so, does the employer exercise sufficient control over the employee to render the agreement one that is capable of being an employment agreement?
  4. If these three requirements are met, the factual matrix and working arrangements must be considered.
  5. Is there anything in the particular legislative regime under consideration that requires the court to adjust or supplement any of the foregoing?

Adjudication Officer (AO) Caroline Reidy considered the Supreme Court Judgment when determining the claim below.

Facts

The Complainant was a fiddle player who, since 2013 had performed with leading Irish country music singer, Michael English and his band. Following a series of disputes between Michael English/his manager regarding a variety of issues, including the Complainant’s employment status, he was advised, by an email, in September 2021 that ‘his services were no longer required’. The Complainant asserted that he was an employee of the Respondent and his classification as self-employed by them was a ‘sham’.

He presented the following complaints to the WRC:

  1. That he had been unfairly dismissed.
  2. That he had been dismissed without notice pay.
  3. That he did not receive compensation for Sunday working.
  4. That he did not receive statutory annual leave.
  5. That he did not receive payment for public holidays.
  6. That he did not receive a statement of his core terms of employment.

He relied on the following facts to demonstrate that he was an employee:

  • The Respondent directed him what songs to play/rehearse and when to do so.
  • He was required to wear a uniform.
  • He was paid each week by the Respondent for gigs performed.
  • The Respondent covered expenses, including travel and accommodation.
  • He was required to undertake rehearsals for gigs which was also paid at a set rate.
  • If he was unavailable for work, the Respondent was solely responsible for arranging a substitute in his absence.
  • He had contacted the Department of Social Protection who conducted a Scope investigation and found that he was ‘employed under a contact of service and is an employee’.

The Respondent asserted that there was no mutuality of obligation between the parties, demonstrated by the Complainant’s refusal to accept certain gigs and that he was free to work elsewhere at any time. The Respondent’s representative also stated that the very nature of a band means that all musicians will have to take direction/instruction from one person who will control the performance. The Respondent also contended that the Complainant’s claims had not been made within the statutory time period of 6 months, or even within the further 6 month extended period provided for by the legislation taking into consideration the prolonged period in 2020 that the Complainant had not worked for the Respondent due to the COVID pandemic.

Decision

Based on the 5-step test set out by the Supreme Court (detailed above), and other relevant authorities, as well as the evidence presented by the parties, AO Reidy found the Complainant met the requirement of the legislation and case law to be considered an employee.

Having found that the Complainant was deemed to be an employee, AO Reidy then considered the relevant chronology provided and found that the dismissal was deemed to have taken effect on 22nd September 2021 and, as the Claim to the WRC was presented on 4th March 2022, the claims were in time.

The AO then determined each of the separate claims that the Complainant had presented, as set out above, and found the Complainant’s claims had been made out. The Complainant received a total of €43,840 in respect of his complaints.

Learning points for employers

Employers should review the working arrangements with independent contractors, having regard to the 5-step test set out by the Supreme Court in Karshan, to ensure they have been properly categorised, and they are not falling foul of the employment protections for employees.

Any Member who requires further assistance in relation to this issue should contact the ROI legal team.

FREE Briefing Session: Good Jobs’ Employment Rights Bill Consultation

Date: Friday 30 August 2024 at 10am

Location: Online

Employment law is devolved in Northern Ireland, and it is widely recognised that we are long overdue a review of our legislation, not least if the intent is to keep pace with developments in GB and ROI.  In recognition of the need for reform, on 1 July 2024, the Department for the Economy launched its very ambitious  Good Jobs’ Employment Rights Bill Consultation  – which in some respects is a ‘catch up’ with our counterparts but it also paves the way for more significant changes further down the line.

On Friday 30 August 2024, we are holding a Briefing Session, in a partnership with Manufacturing NI to provide an overview of the Consultation’s content and share insights on what maybe taken forward. We will be joined by Michelle McGinley, Director of Legal & Policy, Kathryn O’Lone, Head of ROI and Business Improvement and Stephen Kelly, our CEO.

For anyone who missed our in-person session in July this is a good opportunity to get to grips with the content of the Consultation

It is vital that the business community’s voice is heard, and we will share views on It is vital for the business voice being heard and what we need to do to provide effective responses.

To register please follow the link:- https://eur02.safelinks.protection.outlook.com/?url=https%3A%2F%2Fevents.teams.microsoft.com%2Fevent%2F36b1d877-16dc-4c6b-9d4c-a9b3b6c2b028%4078a5ea4a-88af-4c7a-aeb2-b0a3d9dc328f&data=05%7C02%7Cinfo%40eefni.org%7C9a4349baa9f44bce8eff08dcc10c9bb6%7C2e891a61d09349dcbba104dbef0e3318%7C0%7C0%7C638597507136623601%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C0%7C%7C%7C&sdata=a62j6Q%2BG%2Bv5tWJ3RYNfCh1oWYaDzn%2FnFq2XVpDkElak%3D&reserved=0

 

BACKGROUND

Employment law is devolved in Northern Ireland, and it is widely recognised that we are long overdue a review of our legislation, not least to keep pace with developments in GB and ROI.

In recognition of the need for reform, on 1 July 2024 the Department for the Economy launched its very ambitious  ‘Good Jobs’ Employment Rights Bill Consultation – aiming not only to ‘catch up’ with our counterparts but also to pave the way for more significant changes further down the line.

On Wednesday 31st July 2024, we held a Briefing Session with members and non-members providing a high-level overview of its content and insights on what we thought would be taken forward. We also discussed the importance for the business voice being heard and how best they could respond.

We have summarised below the key content of the Consultation:

SUMMARY

In the Ministerial Foreword, the Minster for Economy Conor Murphy states that the first objective of his Economic Vision is the creation of good jobs and that everyone benefits from ‘Good Jobs.’ The aim of this Consultation is to fulfil that objective to increase the number of good jobs. In setting out its proposals and calls for evidence the Consultation adopts a range of approaches:

  1. Where proposals are more fully formed, views are sought on how to implement policy.
  2. Policies that entail a range of options, views are sought on which best addresses issues.
  3. Some areas are, a Calls for Information to inform policy options further downstream.

The consultation seeks views on four aspects of a ‘Good Job’ as defined by Carnegie Trust:

Theme A: Terms of Employment

Theme B: Pay & Benefits

Theme C: Voice and Representation

Theme D: Work Life Balance

 We have explored each Theme below highlighting some of the proposals:

Theme A: Terms of Employment

The key purpose of Theme A is to increase protection for those considered to be in precarious working arrangements and address the one-sided flexibility that may be exploitative. From the outset of his appointment the Minister has committed to tackling the use of Zero-Hour Contracts.

The proposals include:

  1. Replacing Zero Hours Contracts (ZHC) with new contracts which protect worker’s rights and seeks views on introducing a right to request to a banded hour and/or more predictable work pattern.
  2. Understanding Employment Status and Bogus Self Employment and asks questions of the necessity of retaining the 3 categories of employee, worker and self-employed.
  3. Discouraging the use of unscrupulous behaviour and unfair practice including addressing Fire & Re-Hire.
  4. Removal of the Swedish Derogation / Pay between Assignment Contacts for Agency workers.
  5. Making the Right to a Written Statement a Day1 right, expanding its provision to workers (not just employees), and increasing the particulars that must be provided.
  6. Providing a right for agency workers to receive a Key Information Document giving transparency on pertinent details of pay for an assignment in one document.

With the exception of 1 above, all these proposals are already in place in Great Britain. The Labour Government is also proposing to review the use of ZHC and consider options similar to banded hours provisions.

THEME B: PAY & BENEFITS

Theme B examines ways to improve an individual’s overall pay and benefits so that they have all the information they need to ensure they understand how their pay and annual leave are calculated.

Some of the proposals include:

  1. The fair allocation of tips, gratuities, and service charges.
  2. Extending the right to a payslip to workers and increasing details that must be itemised including the number of hours worked (were pay varies according to the hours).
  3. Extending the holiday pay calculation reference period for workers on variable hours from 12 weeks to 52 weeks.
  4. Reviewing the Record Keeping Requirements to measure the daily working time of all workers required under Working Time Regulations and considering if the GB approach would work in NI.
  5. Considering if there is a need for a Right to Disconnect.

Points 7 – 9 are already in place in GB and indeed the increase to the holiday pay calculation reference period will, in our view, be very welcome by the vast majority of employers. Businesses need to consider if increasing the Record Keeping obligation set out in Point 11 would place an onerous burden on businesses. At this stage it is unlikely that this will be taken forward in this mandate.

The Right to Disconnect is part of the Labour Government’s Manifesto. We suspect that such a right will not be embodied into law at this stage, but Guidance could be issued from the Labour Relations Agency. In terms of that Guidance, any feedback from business operating in ROI (where a Code of Practice is in place) may help inform it and make it more effective for businesses.

THEME C: VOICE AND REPRESENTATION

The Minister has been clear that increasing the role of trade unions, particularly in low paying sectors, is a priority area and the cornerstone of the Consultation. To do that, the Consultation explores ways that the operation of trade unions can continue to develop and modernise. The key under this Theme is to promote effective and productive workplace relationships.

All areas considered under this Theme are Calls for Information. The evidence gathered could pave the way for future development later and/or we may see a soft approach to some of the issues.

The areas under consideration include:

  1. Views on increasing Trade unions rights to access the workplace over and beyond the current law which only gives unions a limited access in prescribed circumstances. Reference is made to New Zealand were an automatic right to access the workplace exists in any company where the union has members. In New Zealand, a union can also request (that cannot be unreasonably withheld), a right to access were there are no unions member, that includes for the purpose of increasing union membership.
  2. In relation to Trade Union Recognition views are sought on decreasing the threshold that the Organisation must employ at least 21 employees to 11 employees.
  3. Views are sought on the introduction of Collective Sectoral Bargaining to introduce minimum standards for pay, working hours in an affected sector.
  4. Reducing the ballot notice period required to be given to an employer of industrial action be reduced from 7 to 5 days.
  5. Allowing the introduction of electronic balloting and asking if the requirement for the independent scrutineer should be removed.
  6. Opinions are asked about increasing current level of protection for representatives and employees who take part in industrial action (protecting employees from dismissal beyond 12 weeks).
  7. Facilitating Productive Workplace Relationships through a code of practice setting out a guide or common set of principles / behaviours expected.
  8. Extending the ability to apply for Information and Consultation of Employees Agreement so that threshold that needs to be meet relates to the individual establishment rather than the entire legal undertaking.
  9. Reducing the threshold to get an Information and Consultation of Employees Agreement from 10% to 2% of employees in the undertaking (or establishment if above proposal in place).
  10. Whilst no proposals TUPE are set out, views are sought on aligning the NI to that in GB in some areas.

THEME D: WORK LIFE BALANCE

Another component to ‘Good Jobs’ is that an individual should be able to balance their work with family and private life. The proposals in this Theme are seeking to align NI with GB in respect of the new rights introduced by way of Private Member Bills under the previous government:

  1. Making it a Day 1 Right to Request Flexible Working, extending the number of requests to 2 in a 12-month period and removing the requirement for the employee to explain the effect of request.
  2. Introducing a new Right to Carer’s Leave and views sought on how to implement it.
  3. Introducing a new right to Neonatal Care Leave and Pay and views sought on how to implement it.
  4. Furthering the legal protection for pregnant employees against redundancy for 18 months from when the child is born.
  5. Amending rules governing Paternity Leave to allow it to be taken in separate blocks of 1 or 2 weeks, up until child is 1 and making it a Day 1 right.

ISSUES NOT COVERED IN THE CONSULTATION 

Despite this Consultation being perhaps one of the most expansive and ambitious perhaps ever seen in Northern Ireland, there are several areas that are missing. These include:

  • Gender Pay Gap Reporting as responsibility for this lies with the Department for Communities and not the Department of Economy. DfC has stated these Regulations will be implemented in due course
  • Review of Discrimination Laws: the responsibility for equality matters rest with The Executive Office. There is a current inquiry into differences in equality legislation between Northern Ireland and other regions of the UK as well as between Northern Ireland and the Republic of Ireland and the EU with responses being sought until 6 September 2024
  • Collection of the Apprenticeship Levy is a reserved matter although the distribution of funding is administered locally. Labour Government has committed to reviewing the Levy and it is unknown how far that will impact on NI
  • Domestic Abuse Leave & Pay is already enacted into law and the Department of Economy has a separate Public Consultation Public Consultation Domestic Abuse – Safe Leave seeking views on how to operationalise the law. That Consultation also runs until 30 September 2024
  • There is no mention of any reducing the consultation period for proposals for collective redundancy of 100 or more employees from 90 days to 45
  • We believe it is unlikely a 2-year back stop for unlawful deduction from wages claims will be introduced
  • Guidance around calculating holiday pay for typical workers and in particular permanent part year workers
  • Some of Labour’s Manifesto Commitments such as:
  • Making it a Day 1 Right to claim unfair dismissal
  • Extending the for bringing Tribunal claims from 3 – 6 months
  • Establishing new Enforcement Agency for workers rights

TIMELINE

The Department recognises that it is not ideal launching a Consultation over the summer months. However, they have said that is necessary in order to ensure they have sufficient time remaining in the current mandate (which expires in 2027) to get legislation through Stormont and into law.

We anticipate that the earliest we will see any changes will be in 2026 or early 2027.

RESPONSES

The Consultation will close on 30th September.

Responses can be completed online on the Department of Economy website. It is necessary to state whether you are responding as an individual or representing the views of an organisation.

Employers Federation encourages members and non-members to respond using practical insights to ensure that the practicalities of any changes are well-thought-out.

For any queries or feedback in relation on how to respond please contact Michelle McGinley on michelle@eefni.org

 

NORTHERN IRELAND

Gender Pay Gap Reporting is not yet the law in Northern Ireland.

Whilst the laws for Gender Pay Gap Reporting are provided for in Section 19 of the Employment Act (Northern Ireland) 2016,  the legal obligation has yet to be implemented.

Gender Pay Gap Reporting is not included in the Department for Economy’s huge, Public Consultation: ‘Good Jobs’ Employment Rights .  This is because responsibility for Gender Pay does not sit with the Department for Economy but instead with the the Department for Communities.

The Department for Communities has stated that the Regulations will be implemented in due course.

It is of note that, when enacted,  the obligations and reporting requirements in Northern Ireland will go further than the rest of the UK. Northern Ireland will also require a breakdown of information for ethnicity and disability.

GREAT BRITAIN

In 2017, Great Britain introduced a legal requirement for public, private and voluntary sector organisations, with 250 or more employees, to annually report their gender pay gap using a specified snapshot date relevant to their sector.

Labour Government has committed to build on the existing Gender Pay Gap Reporting to introduce disability and ethnicity pay gap reporting for large employers.

IRELAND

In 2021 (taking practical effect in 2022) the Republic of Ireland introduced their equivalent obligations for eligible employers to publish their Gender Pay Gap. Initially the obligations to report only applied to employers with 250 or more employees at the ‘snapshot’ date however this was extended on 31st May 2024 to cover employers with 150 or more employees.

We will of course keep Members informed of any updates from the Department of Communities in respect of Gender Pay Gap Reporting in Northern Ireland.

 

 

 

On 30 July 2024, the UK Government published its Policy Paper National Minimum Wage and National Living Wage: Low Pay Commission remit July 2024 in which it tasks the Low Pay Commission to ‘make work pay.’

The Low Pay Commission is the independent body that advises the Government about the National Living Wage and the National Minimum Wage.

The Government has stated that it is “committed to ensuring that the minimum wage is a genuine living wage which delivers improved living standards for working people right across the United Kingdom.”

Despite increases to the National Minimum Wage, working people face “the brunt of unprecedented cost of living challenge”. The Government’s aim is to protect and boost low earning, whilst maintaining competitiveness and protecting the UK’s economy as a whole.

It therefore recommends a staged transition to a single adult rate and removal of what it calls the ‘discriminatory age bands for adults.’

In the interim, the Government has asked the Commission recommends a National Minimum Wage rate that should apply to 18–20-year-olds from April 2025. It is intended that this will continue to narrow the gap with the National Living Wage, taking steps to in time, achieve the single adult rate.

The Low Pay Commission has been asked to ensure that the rate does not drop below two-thirds of UK median earnings for workers aged 21 and over, a recognised measure of low hourly pay.

This will be of interest to those in or preparing for pay negotiations or budgeting.

The Government has stressed that the pursuit of this ambition must consider the effects on employment of younger workers, incentives for them to remain in training or education and the wider economy.

The Low Pay Commission has been asked to provide a final report in response by the end of October 2024.