In 2022, the P&O scandal brought the spotlight onto dismissal & re-engagement when the Company sacked approximately 800 employees without any consultation or re-engagement.

This contrasts to most employers that only use dismissal & re-engagement as a very last resort when they have both a strong business case and have exhausted consultation to obtain agreement.
 

GREAT BRITAIN
On 18 July 2024, the GB Code of Practice on Dismissal and re-engagement came into force and shortly thereafter on 30 July 2024 the Code as updated  to clarify that:

“The employer should ensure that the only terms which are changed are those which have been subject to the information-sharing and consultation process, and should not use this as an opportunity to make any further changes.”

This Code may have the shortest life as Labour Government has committed to repealing it.

However, it will continue as an interim measure until they are able to build up the protection through the usual process.

On same day the Code came into force, Jonathon Reynolds (GB Secretary for Business and Trade) confirmed that the Government will introduce legislation ‘within first 100 days to put an end to these practices.’

He also confirmed that they ‘will replace the new Code with a strengthened version as soon as the laws are brought forward’.

Currently the Code sets out how employers should act when seeking to change employment terms & conditions. It includes that employers must:
-       contact ACAS before raising the prospect of fire & rehire
-       only used it as a last resort.

Employment Tribunal will be able to increase an employee’s compensation in certain circumstances by up to 25% if an employer has unreasonably failed to comply with the Code.

NORTHERN IRELAND 

At present, there is no definitive legal ban on the use of the practice in Northern Ireland. However, there are legal requirements that employers must fulfil in terms of timeframe relating to redundancy notification.

The issue of dismissal and re-engagement is also being considered as part of the Employment Rights Good Job Bill: Public Consultation.

Three policy proposals put forward in the consultation are:

• Do nothing
• Introduce a Statutory Code of Practice
• Impose a statutory ban.

The Consultation states that it does not want to place unnecessary burdens on potentially struggling business at risk of closure, perhaps indicating that there will be limited circumstances when it can be used.

It will be interesting to see if the direction of travel in Great Britain influences Northern Ireland to adopt a more stringent approach.
 

Over The Bloody Moon working in partnership with Employers Federation

Dear All,

As you will be aware, we will be joined by Karina Todd of Over The Bloody Moon* at our Employment Law & HR Conference on 18 September 2024.

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 dates/details are:

Menopause Allies Training

Tuesday 1 October 2024

9.30am – 11.30am

£195 plus VAT pp (Member rate)

£225 plus VAT pp (non-Member rate)

 Aimed at: All employees

What is it?

A 2-hour interactive session that covers:

• Why menopause matters in the workplace
• The diversity of menopause experiences (types, triggers, stages, possible impacts, variances)
• Symptom management options
• Menopause allyship (role and responsibilities, cultivating conversation, signposting to support)
• Q & A
• MenoVest Demonstration & Trial

Learning outcomes:

• Ensure all employees are more knowledgeable about menopause
• Feel more positive about menopause
• Feel more confident talking about menopause with others
• Ensure all employees respond in an appropriate and consistent way

Menopause Ambassador Training

Tuesday 8 October 2024

9.30am – 2.00pm (with a break for lunch)

£375 plus VAT pp (Member rate)

£395 plus VAT pp (non-Member rate

Aimed at: Mental Health First Aiders, HR, ERG network leads or members, menopause advocates wanting to create a positive culture and noise around menopause in their workplace, as well as being the go-to frontline support to provide practical signposting to resources and a safe space for people to share  their experiences.

What is it?

A 4-hour live training, split into two sessions. Learners are required to watch four Menopause 101 bitesize videos on menopause before the session (viewing time of 10 mins). The training is interactive involving role play, group work and case studies.

The programme covers:

• Session aims and expectations
• Legal framework, role & allyship traits
• Our PAUSSE model
• Communication tips and event planning
• Maximising engagement
• Group vision and action planning
• Certificate upon completion

Learning outcomes:

• To equip Menopause Ambassadors with knowledge on the variances of menopause and possible impacts at work
• To give learners the confidence to know how to support colleagues and managers, on an individual basis, across a variety of scenarios
• To know how to signpost colleagues to resources and options to support themselves or others on menopause at work
• To leave the session inspired and motivated with a clear menopause action plan for future events and training

Menopause – Advanced People Manager Training

 Tuesday 22 October 2024

9.30am – 11.30am

£195 plus VAT pp (Member rate)

£225 plus VAT pp (non-Member rate)

Aimed at: People Managers and HR Managers.

What is it?

• A 2-hour interactive workshop with case studies, a role play, and quiz, facilitated by an OTBM
• Trainer to accelerate learning
• Learners are required to watch four Menopause 101 bitesize videos on menopause before the session

The programme covers:

• Why menopause matters and possible impacts?
• Legal framework, manager’s role and allyship (do’s and don’ts)
• Cultivating conversations (role play)
• Reasonable adjustments: a break-out case study
• Encouraging positive change (resources)

Learning outcomes:

• Up-skill managers so they feel confident and equipped to support those impacted by menopause
• Understand their duty of care and respond appropriately
• Be confident around reasonable adjustments to improve experiences of menopause at work
• CPD accredited e-certificate, upon completion

If you would like to book a place on any of the above courses, please email John Gibson (john@eefni.org) to confirm the course you are interested attending, the number of delegates, and any dietary requirements or reasonable adjustments.

*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.”

Introduction

The King’s Speech was handed down on 17 July 2024 when King Charles announced the Government’s legislative programme. The programme is heralded by the Government as being mission led and based upon the principles of security, fairness and opportunity for all. During the Speech the King told the Members of the House of Commons that the new Labour Government will introduce 35 new Bills into Parliament. The first one mentioned was the Employment Bill which signals the importance placed on it by the Government. Indeed, the Bill was described by the Deputy Prime Minister, Angela Rayner, who later that day chaired her first Cabinet Committee on the Future of Work, as the biggest upgrade to rights at work for a generation.

Whilst employment law is devolved in Northern Ireland, there is undoubtedly synergy between the UK’s Government plans to prioritise growth across all regions and Northern Ireland’s Economic Vision to increase productivity, address Regional imbalance and increase the number of persons in ‘Good Jobs.’

The Briefing Notes to the King’s Speech 2024 provide some, but not all, of the detail behind the headlines. We have highlighted below some of the proposed new rights and how they compare to the current, and possible future, position in Northern Ireland.

In Northern Ireland there is a ongoing Public Consultation on an Employment Rights ‘Good Jobs’ Bill which closes on 30 September 2024. Some of the areas being considered in Great Britain are also up for consideration in Northern Ireland.

The proposals in Great Britain are set out below along with the position in Northern Ireland:

1. Banning Exploitative Zero-Hour Contracts

Great Britain:

The Labour Government plans to ban Exploitative Zero-Hour Contracts ensuring workers have the right to a contract that reflects the number of hours they regularly work and get reasonable notice of changes in shift with proportionate compensation.

Northern Ireland:

This is also being considered in the current Northern Ireland Consultation. As well as considering an outright ban, there is a proposal to replace zero hour contracts with contracts that provide flexibility and protect workers’ rights. One of the proposals being considered is using a similar model as to the Banded Hours provisions that are in place in the Republic of Ireland. Provisions are also being considered to ban exclusivity clauses (which are already unlawful in Great Britain) and introduce a mechanism for some form of compensation for late cancellation of work hours.

2. Ending ‘Fire & Rehire’ & ‘Fire & Replace’

Great Britain:

The new Statutory Code of Practice on dismissal and re-engagement only came into force on 18 July 2024 and is one of the legacies of the last Conservative Government. It will be a short lived Code, as the Labour Government has committed to repealing it. They state they want to reform the law to provide more effective remedies.

Northern Ireland:

The issue of dismissal and re-engagement is also being considered as part of the Consultation with proposals ranging from: do nothing; introduce a Statutory Code of Practice; or impose a statutory ban. It will be interesting to see if the direction of travel in Great Britain influences Northern Ireland to adopt a more stringent approach.

3. Parental Leave, Sick Pay & Protection and Unfair Dismissal 

Great Britain:

The Labour Government announced their plans to make Parental Leave, Sick Pay & Protection from Unfair Dismissal Day 1 Rights.

The removal of the 2 year continuous service requirement in order to bring an unfair dismissal claim, is perhaps one of the most publicised measures and will have a real impact on workplaces. The Government has said that it will still allow dismissals during the probationary period but it is not clear how that will operate.

In terms of SSP, they intend to remove the lower earnings threshold for entitlement to SSP and also remove 3 day waiting period.

Northern Ireland:

In Northern Ireland there is a continuous service requirement of 1 year in which to bring an unfair dismissal claim; there is no proposal to change this.

Whilst SSP is a devolved matter for Northern Ireland, historically we mirror GB changes and could well adopt them here.

There are some proposals looking at Paternity Leave but not Parental Leave

4. Flexible Working

Great Britain:

On 6 April 2024, the right to request flexible working became a day 1 right in Great Britain. Two requests in a 12 month period can now also be made and parts of the statutory process have changed.

The Labour Government wants to go further; rather than a right to request, it intends to make Flexible Working the default position from day 1. The onus will therefore be on employers who will be required to accommodate a flexible working request as far as reasonable.

Northern Ireland:

The current proposal is to make flexible working a day 1 right and essentially bring Northern Ireland in line with the changes that came into effect in Great Britain on 6 April 2024.

5. Enhancing protection to women who are pregnant or have had a baby

Great Britain:

In 2024 the Protection from Redundancy (Pregnancy and Family Leave) Act 2023, and the Maternity Leave, Adoption Leave and Shared Parental Leave (Amendment) Regulations 2024 enhanced the protections afforded in respect of maternity, adoption and shared parental leave for 18 months following birth.

The Labour Government proposes to make it unlawful to dismiss for 6 months after return to work, except in specific circumstances.

Northern Ireland:

The current proposal is to enhance the protection and essentially bring Northern Ireland in line with the changes that came into effect in Great Britain on 6 April 2024.

6. Establishing new Single Enforcement Body, called Fair Work Agency to strengthen enforcement of workplace rights

Great Britain:

This will only apply to Great Britain; it is proposed that this will make it easier to enforce workplace rights.

Northern Ireland:

No such proposals are currently being considered.

7. Sectoral Pay Agreements

Great Britain:

The Labour Government has committed to establishing a Fair Pay Agreement in the adult social care sector. Thereafter, following review, they plan to assess how and to what extent such agreements could benefit other sectors. This type of sectoral pay agreement is effectively a collective agreement that covers all workers in a sector of the economy, whether they wish to be a part of a union or not. It contrasts to private collective bargaining where agreements only cover individual firms.

Northern Ireland:

Sectoral type agreements are mentioned in the current Consultation in Northern Ireland but no proposals are set out. The Consultation is only asking for views on how sectoral collective bargaining could be improved.

8. Trade Union Legislation and Minimum Service Levels

Great Britain:

The Labour Government plans to remove unnecessary restrictions on trade union activity and ensure industrial relations are based around good faith negotiation and bargaining. They plan to introduce a regulated route to ensure workers and union members have a reasonable right to access a union within workplaces.

The Strikes (Minimum Service Levels) Act 2023 came into force (in Great Britain only) on 20 July 2023 and have faced much controversy. The purpose of the legislation is to require trade union workers in England, Scotland and Wales to provide a minimum service during a strike in health, education services, fire and rescue, border security, transport and nuclear decommissioning. The Labour Government has confirmed that it will repeal this law.

Northern Ireland:

Northern Ireland did not introduce similar laws. Indeed in Northern Ireland, as we did not introduce counterpart laws to the GB Trade Union Act 2016, there is less restriction on trade unions.

The current Consultation also wants to further strengthen ‘voice and representation’ in the workplace by fostering strong relationships between workers, employers and government. This includes developing and modernising the framework within which trade unions operate. It proposes doing this through, for example:

• Increasing ability for unions to access workplaces
• Permitting e-balloting
• Decreasing the information and notice required before taking industrial action
• Seeking views on the adequacy of protection for employees against detriment who have took part in industrial action

In terms of the minimum service laws, no such equivalent was proposed or exists in Northern Ireland.

9. Simplifying the Process of Statutory Recognition

Great Britain:

The detail on this is lacking in the Briefing Notes. However the Labour Party Manifesto states they will introduce e-balloting and review the existing thresholds which they say place too high a hurdle in modern workplaces. They plan to remove the requirement in GB (introduced by the Trade Union Act 2016) that trade unions show that 50% of workers are likely to support their claim before the process has begun; this would be amended to only requiring a simple majority for a union to obtain recognition.

Northern Ireland:

As stated above Northern Ireland did not introduce laws similar to the Trade Union Act 2016. The Consultation notes that 65% of business in Northern Ireland fall outside of the threshold for which a union could obtain statutory recognition as they do not employ at least 21 workers. The Consultation seeks views on whether this threshold should be lowered in line with the threshold for monitoring with Equality Commission i.e. 11 or more workers working 16 hours or more per week.

10. Draft Equality (Race and Disability) Bill

Great Britain:

The Labour Government states that the draft Bill will tackle inequality for ethnic minority and disabled people by enshrining in law the full right to equal pay for ethnic minorities and disabled people and introducing mandatory ethnicity and disability pay reporting for larger employers (those with 250+ employees).

Northern Ireland:

Discrimination issues fall outside the remit of the Department of Economy which has issued the ‘Good Jobs’ Bill Consultation. In Northern Ireland, the ability to introduce gender pay reporting is contained in section 19 of the Employment Act (Northern Ireland) 2016 in tandem with the introduction of Gender Pay Gap Reporting Regulations.

Of note, when those Regulations are implemented in Northern Ireland (see below) they will not only require gender pay reporting but also ethnicity and disability reporting. This law and Regulations fall under the responsibility of the Department for Communities which confirmed that the way forward on how this legislation is to be enacted is currently being considered and will be announced in due course.

11. Reform GB Apprenticeship Levy

Great Britain:

The Labour Government plans to reform the apprenticeship levy.

Northern Ireland:

The system for administering the apprenticeship levy is different in Northern Ireland but there is widespread support amongst businesses for reform.

The Minister for the Economy has stated the Department is recalibrating its skills agenda. It has also been recognised that the way the apprenticeship levy currently operates in Northern Ireland is not working – larger businesses in Northern Ireland must pay an apprenticeship levy to the UK Treasury (of circa £80 million) but have no guarantee that Northern Ireland will have any direct benefit.

As the apprenticeship levy is a reserved matter, politicians are making the case that it does not work for our local organisations.

Conclusion

Certainly this is a time of significant change for employment law / HR professionals as we work through these changes in the workplace. Whilst the Labour Government plans to introduce an Employment Bill in the first 100 days (i.e. by 12 October 2024), by the time it goes through the parliamentary process, it is unlikely that any of the new laws and rights will be in force for another 12-18 months (October 2025 or April 2026.) This gives workplaces in Great Britain time to plan and prepare.

Some of proposals are similar to what is being considered in the current Northern Ireland Good Jobs Bill Consultation but undoubtedly the GB proposals go much further.

It will be very interesting to see how far the direction in Great Britain influences the way forward in Northern Ireland.

LEGAL UPDATES

1. Extension of paid Parent’s Leave and Benefit

The Parent’s Leave and Benefit Act 2019 (Extension of Periods of Leave) Order 2024 has been signed into law and, with effect from 1^st August 2024, parents will be able to avail of nine weeks paid Parent’s Leave and Benefit during the first two years of a child’s life, or in the case of adoption, within two years of the placement of the child with the family.

The leave will also apply retrospectively to parents who have taken seven weeks’ Parent’s Leave prior to August 2024 (i.e. they will now have an entitlement to an additional two weeks) if their child had not reached the age of two when the leave is taken (in the case of an adopted child it is still within two years of the date of placement of the child when the leave is taken).

A copy of the Parents Leave and Benefit Act 2019 is available here.

A copy of the Parent’s Leave and Benefit Act 2019 (Extension of Periods of Leave) Order 2024  is available here

Members should update their internal policies accordingly.

2. The Automatic Enrolment Retirement Savings System Act 2024

The Automatic Enrolment Retirement Savings System Bill 2024 has been passed by both Houses of the Oireachtas and on 9^th July 2024 was signed into law by President Higgins.

The Act provides for a new retirement savings scheme for workers who earn over €20,000 and who are not already members of a pension scheme.

The Act also establishes an independent public body, the National Automatic Enrolment Retirement Savings Authority (NAERSA) to administer the system and ensure compliance, under the auspices of the Department of Social Protection.

Tata Consultancy Services (TCS), a leading global IT services, consulting, and business solutions organisation, has been selected to provide this administration as a managed service.

NAERSA will identify and enrol participants, collect and pool contributions, arrange for the investment of contributions, manage participant accounts including opt-outs, suspensions and opt-ins, and facilitate the payment of savings at retirement. This will mean employers will have minimal administrative work in relation to Auto Enrolment.

We previously set out details of the proposed scheme to members  here, however we have summarised the main provisions below.

• All employees not already in an occupational or equivalent pension scheme, aged between 23 and 60, and earning over €20,000 across all of their employments, will be automatically enrolled. Exempt employment is defined in chapter 2 of the Act.
• Auto Enrolment will commence in 2025 on a gradual phased basis over a 10 year period. Initially employer and employee contributions starting at 1.5% and increasing every three years by 1.5% until they eventually reach 6% by Year 10 (2034).
• Matching contributions will be made by employers to those contributions made by employees up to a maximum of €80,000 of earnings.
• The State will also top up contributions by €1 for every €3 saved by the employee, up to a maximum of €80,000 of earnings. This is in addition to the €3 that will also be contributed by the employer.
• The system will be voluntary but will operate on an ‘opt-out’ rather than an ‘opt-in’ basis.
• Eligible employees will be automatically enrolled/ ‘opted-in’ but will have the choice after six months’ participation to opt-out or suspend participation.
• Participants will have a range of four retirement savings strategies to choose from. Those who do not express a preference for any strategy will be enrolled into the default strategy.
• Workers moving between jobs will not have to change pension schemes or join a new scheme. They will remain members of the Auto Enrolment scheme on a ‘pot-follows the member’ basis. In addition, people with multiple employments will have their pension savings consolidated into one AE ‘pension pot.’

A copy of The Automatic Enrolment Retirement Savings System Act 2024 is available here. We will keep Members updated of the provision of Regulations for any matter referred to under the Act.

LABOUR RELATIONS AGENCY ANNUAL REPORT (July 2024)

The Labour Relations Agency has recently published its Annual Report and Accounts 2023/2024

Gordon Milligan, the Chair of the Board stated is his Foreword that the Agency has finally realised its longstanding vision, which is:

‘to be widely recognized As Northern Ireland’s leading authority in promoting productive working relationships for the benefit of individuals and organizations to support the creation of a thriving and inclusive economy.’

The report, which covers performance, governance and accounting issues, states that the Agency has become thought leader and has conducted research in areas including:

• Cost of Conflict
• Building a Business Case for Good jobs

The Agency has also held a number of events such as “Flexible Futures’ and ’10X Reasons (and more) for Good Employment Relations Conference.’

The report highlights how the Agency has been stretched in terms of capacity. Staff have been dealing with increased number of Collective Conciliations (in effort to avoid or stop strikes).  The huge number of Tribunal Claims for Holiday Pay and Pension claims (of which there are thousands in the Tribunal) have also absorbed their capacity.

Looking at its future, the Agency is continuing to work on a Good Employment Charter and developing a New Code of Practice on Collective Bargaining, the latter of which will take into account the Minister’s proposals to strengthen the trade unions.

Some of the work conducted by the Agency has also been at a Sectoral level and again this will feed into the Minister’s Economic Vision about gathering evidence to consider the introduction of Collective Sectoral Bargaining.

The above is very much a high-level summary of the report. The Agency however does a tremendous amount of other work which is set out in more detail in its publication, and it is fair to say punches well above its weight for its modest size and resource.

To fully appreciate the extent of the LRA’s role in promoting good employment relations in Northern Ireland, we recommend that you read the report in full.

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

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

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

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

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

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

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

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

The Equality Commission has commented that:

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

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

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

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

Domestic Abuse – Safe Leave Public Consultation

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

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

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

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

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

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

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

Of note are issues around:

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

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

You can respond online at:

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

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

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

SUMMER 2024

LEGISLATIVE UPDATE

1. Changes to collective redundancies- Insolvent Employers

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

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

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

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

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

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

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

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

2. Increase in rate of Pay for Contract Cleaning Industry

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

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

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

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

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

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

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

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

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

The Code seeks to:

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

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

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

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

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

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

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

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

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

Inflation

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

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

Recruitment and retention

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

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

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

Technology

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

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

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

Climate change

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

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

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

The full Report can be accessed here.

CASE LAW UPDATE

1. An Employee v A Service Provider to Financial Services

Sick Leave Act 2022

Facts

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

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

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

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

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

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

Decision

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

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

Learning points for employers

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

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

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

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

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

The Guide states that the main changes relate to:

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

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

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

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

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

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

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

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

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

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

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