In Jhuti -v- Royal Mail Group ET/2200982/2015, an employment tribunal has awarded substantial compensation for unfair dismissal and detrimental treatment arising from a protected disclosure. The employment tribunal had held a separate remedies hearing followed a protracted whistleblowing case that had previously been subject to an appeal in the Supreme Court – Royal Mail Group Ltd -v- Jhuti [2019] UKSC 55.

Facts

Ms Jhuti was employed by Royal Mail from September 2013 until her dismissal in October 2014. Her employment was subject to a six-month trial period. Shortly after her employment commenced, Ms Jhuti formed the view that members of her team were failing to comply with regulatory guidance, which prohibited incentives being offered to existing customers. In doing so, they were securing bonuses for themselves and indirectly for their team leader, thereby in effect defrauding the company. Ms Jhuti reported her concerns to the team leader, who subsequently fabricated concerns regarding Ms Jhuti’s alleged inadequate performance to engineer her dismissal for failing to successfully complete her trial period.

Ms Jhuti was pressurised into retracting her allegations and thereafter subjected to a rigorous performance review process, which included unrealistic targets, lengthy review meetings and an improvement plan developed to deliberately set her up for failure.

Ms Jhuti consequently became extremely unwell and was signed off due to work-related stress in March 2014.

In April 2014, an independent manager was brought in to decide whether Ms Jhuti’s employment should be terminated on grounds of performance. The decision-maker had no previous dealings with Ms Jhuti and was asked to review the evidence provided to her, rather than to investigate the matter herself. Emails sent by the claimant regarding procedural irregularities were withheld from the decision-maker, and she accepted the team leader’s assertion that Ms Jhuti’s performance had been unsatisfactory.

During this time, Ms Jhuti was medically unfit to meet with the decision-maker or to effectively present her case. In her absence, the decision was taken to dismiss her on the basis that she had failed to meet the required standards of performance and was unlikely to do so in the future.

The case has been the subject of a number of appeals, eventually reaching the Supreme Court in June 2019. The Supreme Court held that Ms Jhuti had been automatically unfairly dismissed and detrimentally treated for ‘blowing the whistle.’ The matter was subsequently remitted back to the employment tribunal to consider the level of compensation to be paid to Ms Jhuti (see remedies hearing below).

Decision

At the remedies hearing, the tribunal found that Ms Jhuti had suffered a ‘lengthy and intense period of bullying’ which had left her with PTSD and recurrent episodes of severe depression, which led to the breakdown of her relationship with her daughter. The medical evidence was that she would never work again due to the combined effects of her illness and the stigma of six years’ unemployment since her dismissal.

The tribunal ordered that Ms Jhuti should be compensated in full for lost earnings up to her normal retirement age of 67. She was also awarded £55,000 general damages for psychiatric injury, £40,000 for injury to feelings, £12,500 aggravated damages and 0.5% uplift for unreasonable failure to comply with the ACAS Code of Practice on Disciplinary and Grievance Procedures.

Comment

This case is noteworthy for a number of reasons, including how to deal with a person who lacks mental capacity to give instructions in the tribunal.

In terms of whistleblowing, the Supreme Court held that the dismissal was automatically unfair despite the fact that the dismissing manager was unaware of Ms Jhuti’s protected disclosures as they were hidden by manager who dressed it up as allegations of poor performance.

These allegations of poor performance were adopted in good faith by the decision-maker, however the real reason for the dismissal was the protected disclosures. The Supreme Court found it permissible to attribute to the employer the manipulator’s state of mind, rather than that of the deceived decision-maker.

Whilst Ms Jhuti was found to have a lifelong vulnerability and predisposition to develop anxiety, depression and panic attacks, the Court repeated the ‘eggshell skull’ rule i.e., you take the person as you find them.

Detailed medical evidence was adduced at the remedy hearing. One report from Dr Lockhart, Consultant Psychiatrist, stated:

‘The disorder would not have occurred had her employers made a different response to her report of breaches of policy and regulations. In particular, other factors in her account of events, if established as having happened, were in my opinion powerful triggers for her subsequent psychiatric disorder. These factors are lack of an appropriate response from management and human resources, what appear to have been punitive measures against her over several months…, and delays in dealing with her grievance.’ (our emphasis)

Clearly the action, or inaction, of HR when handling a complaint can impact the size of any award. Compensation for unfair dismissal claims can only cover financial loss, however compensation for automatically unfair dismissal for whistleblowing is unlimited. It is irrelevant whether the person’s belief is wrong; it will still be protected.

In certain cases, including unfair dismissal and detriment cases, failure to comply with the LRA Code of Practice on Disciplinary and Grievance Procedures (ACAS Code in GB) may increase or decrease any award to by between 10% and 50%. This can be a significantly increase any award, partially one where the level of compensation payable is high to begin with.

We encourage HR to always ensure probing questions are asked of managers when making decisions regarding individuals’ employment, but particularly where they may have been a history disclosures or grievances raised. This ensures employers can defend any allegation that the decision to discipline or dismiss an employee is based on the merit of the case, and not connected to any other reason.

Compromise Agreements: Can future claims be included that have not yet arisen and are not yet known about?

We are often asked if future claims, that have not yet arisen and are not yet known about, can be settled in a Compromise Agreement (known as Settlement Agreements in GB).

Compromise Agreement is one of two ways in which a binding agreement can be reached so as to preclude that person being able to bring a claim in the Tribunal. The other way is through a Conciliated Agreement (either employer led of early conciliations processes) with the Labour Relations Agency.

It is well established that Settlement Agreements must not contain boiler plate clauses that is standardized text that is used over again without making major changes to the original. Instead, the Agreements must be tailored to the circumstances in question and relate to the particular complaints that can be brought by the employee. This differs from binding agreements through the Labour Relations Agency which can be wide reaching and contain standard terms.

This recent GB Employment Appeals Tribunal case of in Bathgate v Technip [2022] EAT 155 Bathgate v Technip [2022] EAT 155 held that Settlement Agreements cannot preclude future discrimination claims.

FACTS:

B took voluntary redundancy in January 2017, signed an Agreement that included a settlement of all claims including those for age discrimination that had not yet arisen and could not be known about.

That Settlement Agreement provided for payment of an enhanced redundancy, notice payment, payable with his final salary, and an additional sum which would be paid in June 2017.

After signing, the Company then decided that (given the terms of an old Collective Agreement governing how the additional sum was to be paid) B was not entitled to the additional sum as he was over 60 years old.

B brought an age discrimination claim and the Company argued that he had signed away his right to bring an age claim.

EAT HELD:

In considering his case the EAT asked if he had signed away his right to bring that claim and found that he had not stating:

“The inclusion of a claim in a [settlement] agreement defined merely by reference to its legal character or its section number does not satisfy the language of [the Equality Act]. The words ‘the particular complaint’ suggest that Parliament anticipated the existence of an actual complaint or circumstances where the grounds for a complaint existed. I do not consider that the words ‘the particular complaint’ are apt to describe a potential future complaint.”

Therefore, the EAT Judgment held that a ‘particular complaint’ could never relate to a cause of action that had not emerged at the time of the agreement.

In coming to that view, it found that ‘particular complaint was one that [must have] had already arisen between the parties.’

COMMENTARY

This case goes much further than the case of Royal National Orthopaedic Hospital Trust v Howard [2002] IRLR 849 which considered the extent to which a waiver could potentially cover future claims.

Royal National Orthopaedic Hospital had held that it was still possible to compromise future claims, which parties had no knowledge of, whether in existence or the future. Royal National Orthopaedic Hospital stated that to compromise such claims then the Agreement must be absolutely clear and leave no room for doubt that it is doing that. This case limits that dramatically by interpreting the words ‘the particular complaint’ to relate to the precise facts that have occurred.

It also differs from Arvunescu v Quick Release (Automotive) Ltd [2022] EAT 26. There the EAT found that a binding Agreement via ACAS (equivalent to LRA) can, if the wording is sufficiently clear and wide enough, cover a future claim brought after the COT3 had been signed. The wording in that agreement had stated: “of any kind whatsoever, wheresoever and howsoever arising…. [and which arose]…directly or indirectly out of or in connection with the claimant’s employment with the respondent, its termination or otherwise”. It also contained clause making it clear “even though the claimant may be unaware at the date of this agreement of the circumstances which might give rise to it or the legal basis for such a claim”.   We will have to wait and see if this approach is also applied to LRA Agreements and there is a possibility that there will be an appeal in this case to the GB Court of Appeal. But perhaps this is another reason for recommending the use of a LRA Binding Agreement over a Compromise Agreement given that the later might potentially be able to settlement future claims.

On 24 October 2022, the Department of Economy launched a public consultation to bring into force a legal right to miscarriage leave and pay.

This is to enact the commitment – (set out in the Parental Bereavement (Leave and Pay) Act (Northern Ireland) 2022 (the 2022 Act) – to extend the provisions in that Act to those that suffer a miscarriage and remove the service requirement for pay.

The current Statutory Parental Bereavement Leave & Pay entitlement provides for:

• 10 days’ Parental Bereavement Leave;
• Parental Bereavement Pay for ‘eligible’ working parents (must meet minimum earnings threshold & have 26-week service requirement);
• for stillbirth from the 24th week of pregnancy, or the death of a child under the age of 18.

The Executive is obliged by 6 April 2026 to:

• Extend benefits to those that suffer miscarriage (under 24 weeks);
• Remove the 26 weeks’ service requirement for pay (i.e., make it a Day 1 right)

When announced, Northern Ireland was the first jurisdiction in Europe to legislate for leave and pay for miscarriage; and when these new rights are enacted, it will mean Northern Ireland’s provisions will go further than the provisions place in GB.

Th Consultation runs from 24 October to 19 December 2022 and seeks views on enacting laws for miscarriage to mirror the provisions currently in place for death of child or still birth. It covers the following areas:

• Eligibility;
• How and when miscarriage leave can be taken;
• The duration of miscarriage pay entitlement;
• The notice to be given to an employer; and
• Establish what evidence may be required to demonstrate an entitlement to take miscarriage leave and/or pay.

It does not ask any questions on the tricky issue of ‘how do you calculate if a person meets the lower earning threshold if they have only started employment when they work irregular hours?’

Members can respond directly by completing the Response Document, which seeks in the main yes/no responses, by providing any response to info@eefni.org and we will respond on Organisations’ behalf. Please do contact us if you wish to discuss the consultation or any views in more detail. The Consultation documents can be accessed here.

Employee and Workers Rights

In Northern Ireland (unlike some other European countries) the law recognises three types of persons:

1. Employees
2. Workers
3. Self-Employed

Although many terms can be used to describe the status of people who work, for example, consultants, contractors or temps, casual workers strictly speaking, these terms have no specific legal meaning.

Why does the person’s status matter?

A person’s rights depend to a substantial degree on their status. Some very substantial rights only apply to employees. Compared to workers, there are more obligations between an employer and an employee.

Workers have fewer rights than employees, but still benefit from important protection. All worker rights are rights from day 1, where limb (b) workers do not need continuous service or qualifying periods to accrue their rights reflecting their more flexible relationship to their employer(s).

Self-employed people have very few rights from an employment law perspective, Generally, self-employed individuals have no statutory employment rights but are entitled to some health and safety protections/obligations as well as anti-discrimination rights when they are contracted by a customer or client.

This table summarises the rights that pertain to employees only and those that apply to both workers and employees.

Main statutory rights and applicability to employees only or to all workers 

Note A: in GB, workers are entitled to a written statement within 2 months by virtue of Section 1(1) ERA 1996

Note B: leave for family and domestic reasons – after 12 weeks agency workers are entitled to paid time off to attend ante-natal care appointments; time off to accompany to ante-natal appointments; paid time off to attend adoption appointments; unpaid time off to attend adoption appointments

Note C: agency workers are entitled after 12 weeks – Regulation 7 Agency Workers Regulations (NI) 2011

Note D: but see first instance decision of Dewhurst v Revisecatch Ltd (t/a Ecourier) ET/2201909/18

Note E: It is automatically unfair for an employer to dismiss an employee on the grounds of trade union membership or for participating in union activities at an appropriate time. It is also against the law to refuse to recruit a person as a limb (b) worker or employee because the person is a member of a trade union. Employers must not subject a limb (b) worker or employee to detriment for the purposes of preventing, deterring or penalising trade union membership or participation in union activities at an appropriate time.

Retained EU Law: Do you understand what it is all about?

If you are still trying to understand what the significance to the Retained EU Law (Revocation and Reform) Bill 2022-23 is, then this Commons Library Research Briefing Commons Library Research Briefing is a good starting point.

The Summary may answer some of your questions such as:

• What is retained EU law (REUL)?
• Why is the Government revisiting REUL?
• What were the Government’s constitutional concerns?
• What does the Bill do?
• What is the significance of these changes?

In commenting on the significance of the Bill. It states:

“It is difficult to assess the impact this Bill will have on the substantive law of the UK. If it is enacted, and nothing is done legislatively thereafter, vast reams of REUL would fall away at the end of 2023. This would create precisely the “gaps” in domestic law the EU (Withdrawal) Act 2018 was designed to avoid. This is a very unlikely outcome, however.

Organisations including the Hansard Society and Public Law Project have expressed concerns about Parliament being marginalised.”

Commentary

The Briefing notes that the current Bill goes considerably further than had been indicated in the December 2021 Ministerial Statement and completely overhauls the constitutional architecture of REU. The speed at which the changes are proposed to be introduced are a real cause for concern which may result in the possibility of gaps leaving uncertainty for businesses. Another likely outcome will be that differences between each of devolved nations will widen. Time will tell if the Bill proceeds given the change in Prime Minister.

Roadmap for Industrial and Fair Employment Tribunal

On 5 October 2022, Northern Ireland President of Industrial and Fair Employment Tribunal presented what he called “Roadmap for NI Industrial and Fair Employment Tribunals” to the Employment Lawyers Group.

The President provided context to his talk in that he criticised the delays in Tribunal processes; and increasing complexities of cases.

He used the opportunity to urge parties (both Claimants and Respondents) to apply for Deposit hearings in appropriate cases where they can support an application that the case has little reasonable prospects of success. The President also asked Users to increasingly accept oral judgments and not apply for written ones and in cases where there is a delay in issuing a judgment to chase up the Tribunal.

In his view it has come far from what Lord Denning had warned against i.e. ‘tribunal should never become happy hunting grounds for lawyers.’ To turn it around the President wishes to introduce ‘Judicial Mediation.’

Presidential Guidance will be issued setting out how judicial mediation will operate in Northern Ireland but said it will mirror schemes currently in place in England & Wales / Scotland. Presidential Guidance Rule 3 – Alternative Dispute Resolution

Some key points to note:

In January 2023, the President intends to engage with ‘Regular Tribunal Users’ on Scheme but it will be very similar to Great Britain and it will not be re-invented unless there is a reason for doing so.

All 8 full time Judges will be trained by way of a four day training course in January 2023 with roll out planned for the first set of judicial mediations to start in April 2023. The new Vice President (who will be revealed next week) will have oversight of the Judicial Mediation.

Initially 30 cases will be selected for judicial mediations. In first year of the Scheme, it will be limited to parties that are legally represented but going forward that he anticipates that it would widen to cover all appropriate case.

Generally:

1. Parties would have to agree to it and be willing to move towards a settlement; it is not appropriate for cases when parties are ‘at daggers’ and want to fight case at Hearing.

2. Parties will be asked Y/N question, at case management stage, if they are interested in mediation. Later a question maybe included about judicial assessment which he also hopes to introduce. (England & Wales Presidential Guidance  Rule 3: Protocol on Judicial Assessments)

3. There is no charge for the mediation which will allow parties access to participate in a mediation facilitated by a trained judge. If mediation is unsuccessful, then that Judge will not be involved in case.

4. All mediation notes will be filed separately from the Tribunal case file. If the case proceeds to a full Hearing, the Hearing Judge will not be aware of mediation so it will not taint the full hearing in any way. Parties should not refer to it.

5. If mediation successful, the LRA will be called in to draw up the binding agreement.

6. Mediation will be listed for 1 day or perhaps half day.

7. It would be appropriate in cases such as:

• those listed for over 3 days;
• sensitive issues in which parties do not want publicity (e.g. media persons or reputational fears);
• more appropriate for cases where employment relationship is continuing.
• high value cases;
• (for 1st year) where parties are legally represented.

When asked if this would be ‘mediation’ as we know the term – i.e. parties reach an agreement facilitated (not forced) by a Judge – or would it be more directional, he implied that perhaps it maybe more the directional type of mediation.

The 45 minute talk was certainly colourful and President was very blunt in sharing some of his views. If anyone has ever appeared before him then you might know what I mean.

This has been described by some as this President’s Legacy. In England & Wales the process is supposed to have 65% success rate. We will keep Members updated on any further developments.

We were delighted to have over 120 delegates attend our Employment Law & HR Conference on 21 September 2022 at the Crowne Plaza Hotel. We started the day with some fun interactive sketches drawn by the artist Nuff Inc and delegates had the opportunity to try out their batting skills with a game of table tennis.

We were joined by exhibitors from organisations relevant to the topics we were discussing:

The Labour Relations Agency; Women in Business; Autism NI; Cara Friend; The Rainbow Project – Northern Ireland; Institute Of Directors (IoD) Northern Ireland; Menopause Champions Stephanie Reid; Disability Action Northern Ireland; Employers For Childcare; PIPS Suicide Prevention Ireland Charity; Business in the Community Northern Ireland; Action Mental Health; Nexus – supporting victims of domestic abuse; Parenting NI.

There was such a definite, positive buzz and as Alan Lyons described us – we are a ‘community’ of good, decent people.

Our host for the event was Karen Moore, Senior Employment Lawyer who took us through the programme of topics which included:

Michelle McGinley, Director of Legal & Policy was first up covering Policy and Laws: What’s happening? She spoke about some interesting developments ahead, in particular the Domestic Abuse and Safe Leave Act 2022;

Next up we had Sara Plower, Employment Lawyer presenting the Case Law Review and the importance of having a Dignity at Work policy backed up by relevant training;

Business Psychologist, Alan Lyons of Kinch Lyons gave a powerful presentation on how to make your emotions your superpower;

We then had Kathryn O’Lone, Senior Employment Lawyer who delivered a Practical Approach to Creating a Trans Inclusive Workplace. A very thought-provoking session with great tips on staff training and policy reviews;

Jamie Cater Senior Policy Manager from our sister organisations MAKE UK was next up to talk about ESG (Environmental, Social, Governance) and the benefits of HR leading on ESG.

Tom Hadley, Business Consultant delivered a fact filled session on What do Global World of Work Developments Mean in Practice for NI Employers and Business Leaders:

“70% of young people would rather turn down a new job than work for an organisation that didn’t align with their values.”

Then we broke for lunch and enjoyed a sit-down meal and catching up with familiar faces who we had all really missed seeing in person over the last 2 years

After lunch we had an engaging panel session chaired by Michelle McGinley on some of the big issues affecting business – strikes and industrial action; recruitment crisis and what might we expect from the new Prime Minister. We had great responses from our panellists: Peter Bloch, Managing Director, Tom Hadley, Christine White, Head of Business Development Women in Business and Sinead Sharpe, HR Director, Staff line;

We followed this with Lorraine Toolan, Head of Training who covered the tricky issues of Handling Subject Access Requests and dealing with balancing the interests of personal information and confidentiality.

Lastly, we had a double presenter team – Tim Thomas, Solicitor and Alice Tranter, Senior Legal Associate on Business Travel and service provision in Europe

We held our raffle throughout the day and gave away prizes which peaked with the final voucher for Galgorm Resort & Spa voucher.

It was well and truly a great day enjoyed by all.

Reflecting its diverse and growing client-base, EEF Northern Ireland has rebranded to Employers Federation.

The organisation has been in existence for over 150 years and provides businesses with employment law advice and legal representation. Historically, the Employers Federation mainly consisted of manufacturing and engineering businesses. However, in the last 20 years its client-base has widened considerably and spans across a broad range of sectors and industries.

Announcing the rebrand, Peter Bloch, Managing Director of Employers Federation said: “The rebrand better reflects who we are, the businesses that we support and the significant growth that we have seen over the past number of years. Manufacturing and engineering remain core to our work, but as the NI business environment diversifies we have found ourselves doing the same.”

Employers Federation now supports businesses in a range of industries such as food, recruitment agency, technology, charities, Fintech and pharmaceutical.

Over the past year, Employers Federation has also extended its offer to support clients with operations in both NI and RoI. “We have pivoted our business in order to support our clients in the Republic of Ireland,” added Peter. “So much so, our newly relaunched website has a dedicated section on RoI and we now have lawyers who have obtained qualifications to better serve our clients.”

Michelle McGinley, Director of Legal & Policy said that the ethos of the organisation has not changed: “As a not-for-profit organisation, we pride ourselves on being accessible, reliable and affordable. We have retained our vision to provide a first-class service to all businesses regardless of their size, and at a cost that is affordable to them.”

“This is reflected in our straplines: ‘Employment Law and HR’ and ‘Behind Better Businesses’ – which recognise that the businesses we support are less likely to end up in an Industrial or Fair Employment Tribunal or, when faced with a legal claim, our clients are better placed to successfully defend legal claims.”

Employers Federation sees the rebrand and refocus as a necessary step to meet the increasing demand for employment advice both North and South of the border.

The temporary right to work checks (Right to Work Scheme COVID-19 Adjusted Checks), implemented on 30 March 2022 to help employers during the Covid pandemic, ended on 30 September 2022.

As of 1 October 2022, right to work checks can be completed in one of three ways:

• Manually – by meeting with a prospective employee in person and physically checking original documents in their presence, taking a signed and dated copy and retaining copies securely.
• Home Office Online Check – by obtaining a share code from the prospective employee and using this to check their right to work via the Home Office Employers Checking Service. This is mandatory for all holders of Biometric Residence Permits, Biometric Residence Cards, and Frontier Work Permits.
• Appointing an Identification Service Provider (‘IDSP’) – for British and Irish passport holders only – who will use Identification Document Verification Technology (‘IDVT’) to check passports on behalf of the employer.

For employers intending to use the services of an IDSP, it is important to note that:

• you are still required to verify the content of the IDVT report and retain a separate record to confirm that a visual check has taken place, which should:
  • confirm that the appearance of the prospective employee is consistent with the passport details and image on the IDVT report;
  • identify who conducted the visual check (either by video link or in person);
  • confirm the date of the visual check.

• prospective employees can choose to opt out of using an IDSP and must not be treated less favourably if they do so. Instead, they must be offered a manual right to work check.

Template Clause and Letter to Prospective Employees

Members may wish to include the following right to work template clause in their letters of offer:

Proof of Legal Right to Work within the UK: If not already provided, you should bring proof of your eligibility to work in the UK. If you are a holder of a British or Irish passport or Irish passport card, you should bring this on your first day (which we will then copy and return to you).  If you do not hold a British passport or Irish passport or passport card, then the Company will need to see additional documents proving that you have permission to live and work in the UK. You should contact [POSITION] to find out which documents you will need to provide.

A template letter setting out further information for prospective employees on what additional documents they are required to provide in order to prove their eligibility to work in the UK will be available in the members area shortly. This template includes an option for companies that use the services of an IDSP to conduct right to work checks on British and Irish passport (and Irish passport card) holders.

If you have any queries on this you should contact the Legal Team.

On 22 September 2022, Jacob Rees Mogg, the new Business Secretary introduced to the House a Commons an extremely wide-sweeping Bill to revoke certain retained EU law.

The Bill, when enacted, will extend to England and Wales, Scotland and Northern Ireland.

The purpose of the Bill is to end ‘the special status’ of the majority of retained EU Law on 31 December 2023. In other words, this means that the principle of the supremacy of EU law, general principles of EU law, and directly effective EU rights will end on 31 December 2023.

Before 31 December 2023, the Bill provides that Government departments and the devolved administrations (here the Northern Ireland Executive) will determine which retained EU law can expire, and which needs to be preserved and incorporated into domestic law.

In addition, the Bill has provisions for a ‘sunset date’ by which all remaining retained EU Law will either be repealed or assimilated into UK domestic law. The sunset date may be extended for specified pieces of retained EU Law until 2026.

The Bill was introduced to the House of Commons and given its First Reading on 22 September 2022. This stage is formal and takes place without any debate. The next step is for MPs to consider the Bill at Second Reading. The date for second reading has not yet been announced, but we expect it to be shortly given the very short 15-month time frame for the proposals contained in the Bill.

Commentary

It was widely expected that, under the new Prime Minister, the government would abolish some rights that are derived from the EU as she was quoted as saying that there would be a ‘bonfire of rights.’ Many expected that she would select certain issues that were perceived to cause difficulties, such as those under working time rights. However, instead she has decided to abolish all EU-derived rights and leave it to the devolved nations to select those rights that they wish to retain. This is one of the most significant changes to employment law and done at speed (15 months). Given the haste, it is likely that there will be a lack of clarity around the changes which normally only serves to fuel further litigation.

For example, the repeal (unless selected to be retained) would include:

• Working Time Regulations
• Agency Worker Regulations
• Part Time Worker Regulations
• Fixed Term Employees Regulations
• Transfer of Undertakings

In addition to this, the courts will no longer give supremacy to EU law.

As each devolved nation is also responsible for selecting what to retain etc., this makes further divergence between GB and Northern Ireland even more likely.

It will also be interesting to see how this Bill interacts with the dedicated mechanism under Article 2 of the Protocol. Article 2 provides that there should be no diminution of the rights, safeguards and equality of opportunity provided in the Good Friday Agreement as a result of the UK leaving the EU.  As some EU Directives underpin the Good Friday Agreement, they are protected by Article 2. These include Equality Directives covering discrimination on grounds of protected characteristics (gender, racial or ethnic origin, religion or belief, disability, age and sexual orientation) and promote equal treatment. Article 2 therefore ensures that the minimum standards required by these Directives continue to apply in Northern Ireland post-Brexit.

The text of the Bill can be found here and ‘News Story’ here

MINI BUDGET

On 23 September 2022, the Chancellor announced what was called a Mini-Budget but in reality, was very fulsome. It contained some of the biggest tax cuts in 50 years including:

• The removal of the additional 1.25% increase to NIC

• Lowering of the basic rate of tax from 20% to 19%
• Removal of the higher rate of tax of 45% so highest rate is 40%

• Increase to corporation tax (to 25%) to be abolished – remains at 19%

The Chancellor also announced the reversal of IR35, which would mean that the hirer is no longer responsible for paying correct tax. This was unexpected and will be welcomed by businesses who have struggled to categorise contractors, not helped by the poor HMRC CEST (Check your employment Status) tool.

See The Growth Plan 2022: documents

The Mini Budget has certainly been met with some controversy, but without doubt has some benefits for business.

On 26 September 2022, the Chancellor provided an update on his Update on Growth Plan implementation. An update on next steps following the Growth Plan which the Chancellor set out on 23 September 2022. The Chancellor has stated that supply side reforms will be outlined from October, the Medium-Term Fiscal Plan will be published on 23 November 2022 together with a fiscal forecast. See Update.