Mr Noel Kelly was appointed as the President of the Industrial Tribunals and Fair Employment Tribunal for Northern Ireland on 4 April 2022, taking over from Mrs Eileen McBride who retired.
Members will be aware that, due to Covid 19, the Tribunals Office has been working on a hybrid basis and at reduced capacity since March 2020. This has had a significant impact on the progress of cases.
On 6 May 2022, Mr Kelly issued his first Presidential Guidance aimed at increasing the disposal of business as rapidly (in line with risk assessments) as possible.
The key points are:
Killymeal House re-opens for in-person Hearings
Expedited Hearings
The Guidance allows for Hearings to be expedited so that an earlier Hearing date can be provided in certain circumstances. Reasons where this may be granted include:
Public Attendance
Case Management Preliminary Hearings
As a result of Mr Kelly’s new guidelines, we should begin to see cases progressing more quickly through the Tribunal, which will be welcome news for Members.
You can access the full document at: Presidential Guidance 6 May 2022
If any Member has any queries, please do not hesitate to contact the Legal Team.
The Issues
Brexit was undoubtedly a political vote about migration and started a trend of thinking in terms of “us” and “them.” Political rhetoric from politicians such as President Trump who wants to build a wall to keep the Mexicans out has increased this type of “us” and “them” thinking. Tragic terrorist acts and threats have also resulted in an increase in hate crimes and hate speech. All this has led to a false impression that some level of racial resentment/intolerance is acceptable. For employers, this creates difficulties in maintaining neutrality in the workplace and taking reasonable steps to ensure that employees are not discriminated on racial grounds. This article explores the position in Northern Ireland and looks at the legal perspective, before considering what can employers can do to promote good race relations.
Northern Ireland
Northern Ireland has only 0.1% of the total UK migrant workforce. The 2011 census (figures of which are out of date but are the most up to date) stated that there were 81,453 people born outside the UK or the Irish Republic. This represented 4.5% of the total Northern Ireland population of 1.8 million; of that 1.8% of the population believed that they belong to a minority ethnic group.
Migrant workers primarily live in Belfast, Dungannon, Craigavon, Newry and Mourne areas and predominantly come from Eastern European countries such as Slovakia, Lithuania and Poland. Approximately 5% of the Northern Ireland workforce is comprised of migrant workers. Statistics show that migrant workers tend to fill posts that are hard to fill (such as cleaning and agriculture jobs) and tend to be lower skilled and lower paid. For employers in those sectors and geographical areas the impact of Brexit remains a real concern.
So, does Northern Ireland have any race issues in the workplace? According to the number of Tribunal Claims you may be led to think that there is not. Since 2015 there have been 184 race discrimination cases lodged, 79 of which were in 2016. This number is similar to the number of religious discrimination claims in that year. However, these figures may misrepresent the real situation and that there is evidence that migrant workers are less likely to complain particularly about low level abuse. Other factors, such as language barriers and lack of knowledge of how to lodge a claim, may be behind these numbers.
The Law
There are some differences between the race discrimination laws in Northern. Ireland and GB that are not explored in this article. However unlawful race discrimination includes the familiar concepts of direct and indirect discrimination, harassment and victimisation. For example it would be direct discrimination if a black employee complained about a manager’s conduct and a senior manager then commented erroneously that it was a race discrimination complaint. As direct race discrimination cannot be justified motive is irrelevant.
Indirect discrimination could occur where a Polish person with little written or spoken English applied to be a cleaner, could do the job but was not shortlisted due to their lack of English. Whilst indirect discrimination can be justified it is unlikely that in this case the requirement for written or spoken English could be shown to be a proportionate means of achieving a legitimate aim.
Examples of racial harassment would include racist jokes (French girl subject to ‘oh la la’ jokes) banter and insults (‘Go back home you foreigner’) or mimicking accents or the way a person speaks.
It would be victimisation if an employee raised a race discrimination complaint then applied for a more senior position but was not selected on grounds that the interviewer consciously or unconsciously took into account the fact the employee had raised a complaint.
Employer Liability
Employers are liable for anything their employee does in the course of their employment. The definition of ‘in the course of the employment’ has been extended by case law. Essentially, if there is a link back to the workplace then the employer may be liable regardless of whether the act was done with their knowledge or approval. Importantly the offending employee can also be personally liable. Compensation is joint and severable against any named Respondent and is also unlimited. The employer does have a defence, if it took all reasonable steps to prevent the employee from doing that (discriminatory) act or from doing anything of that description.
Reasonable Steps Defence
The reasonable steps defence goes some way towards the employer maintaining good race relations in the workplace. In order to succeed with the defence, employers must take reasonable steps before any discrimination has occurred and thereafter deal with the matter effectively once it has occurred.
To succeed with the defence, as a minimum, employers must not only have equal opportunities and anti-harassment and bullying policies, but also have:
However, having policies and training is insufficient if it can be shown that managers turned a blind eye to racial harassment and banter in the workplace.
Maintaining good race relations
But good race relations is more than defending legal claims and there are sound business reasons for your business to fully support equal opportunities. There is evidence to show that businesses who fully support equal opportunities have a more productive workforce, lower absentee figures, higher employee retention levels and higher staff morale. This will all contribute to a workplace that is more productive.
Diversity and inclusiveness are currently key concepts in Human Resources. It is recognised that a workforce can be diverse but not inclusive. In order to be inclusive employees need to have a voice, feel valued and connected. Whilst training is a vital step to creating a positive culture it is rarely enough on its own. To be successful it needs to be led from the top down and senior leaders need to drive and support a culture that embraces differences.
Steps for your Organisation
Your organisation should consider its workforce composition and assess if any concerns have been raised through the Company’s processes e.g. exit interviews or appraisals. Training should be refreshed in areas where it is required or where it is outdated. Leaders should clearly demonstrate that they endorse equal opportunities. Importantly, managers need to know how to respond to concerns raised both formally and informally as they tend to be the first recourse for workers. In appropriate circumstances a good manager may be able to nip matters in the bud at an early stage to prevent issues escalating. Your organisation should consider if it could successfully rely on the reasonable steps defence. Being proactive to promote a more diverse and inclusive workplace, by gaining a better understanding of the cultures that exist in your organisation, will assist improving workplace relationships and is likely to contribute to increased productivity.
Impact of Brexit
Undoubtedly Brexit will have an effect on race discrimination. Migration remains a central issue and it is unknown whether people will be able to move freely across the borders. This may lead to increased racial tension. There is also some concern that there may be a roll back on equality laws. This is complicated by the fact that equality law is devolved in Northern Ireland and we may see further areas of divergence in our laws from those in GB. However it is clear from the Draft Programme for Government that equality and good relations are seen to be essential to ensuring a prosperous and thriving Northern Ireland
The Association is continuing to work closely with Fergus McReynolds, Director of EU Affairs for EEF GB and EEF NI, as the UK prepares to exit the European Union. Please find below a summary of the most recent events and some of EEF’s commentary.
Summary of Article 50 week
The letter from Prime Minister May fired the starting gun on two years of negotiations to agree a divorce deal which will set out the terms under which the UK leaves the EU and – we hope – a new partnership based on trade and close cooperation with our European partners. This marks a shift with geo political and generational implications, for both citizens and businesses.
While the mechanism is up and running this will in the end be a political deal between the nations’ leaders – and the politics is of course potentially toxic.
The actual time for negotiating may in reality be much shorter than two years. Any deal will need to be on the table for consideration by January 2019, leaving just over 12 months for the real negotiation, once you’ve taken into account elections in France and Germany and ratification by the European and UK parliaments, that’s all assuming those elections don’t throw up any big surprises or upsets.
So what does this mean for manufacturing?
Well the first message from the manufacturing sector is clear, no deal is not an option. This has been reiterated by ourselves and by our European partners in CEEMET, the EU wide manufacturing group, setting out the need for a Brexit deal that reduces the risk of economic shocks.
As we have set out in our Brexit Briefing on Trade with the EU, no deal would mean a significant disruption to trade between manufacturers in the EU and the UK, unlike a typical free trade-type negotiation where walking away simply means the continuation of the status quo with neither party losing out, this is not the case between the EU and the UK. Should the UK walk away with no preferential access to the EU or international markets in place, on day one of Brexit our sector would immediately find itself at a loss.
So what do we want to see from the negotiations?
EEF’s primary call is to agree a reasonable deal which allows for seamless trade ensuring that we avoid unnecessary tariff burdens and reduce the possibility of technical barriers to trade from administrative blocks to divergence in regulation. In order to deliver this we are firmly of the belief that a significant period of transition will be needed to deliver an orderly and smooth exit from the EU.
In addition, manufacturers will also need to employ and deploy people as freely as possible after Brexit, with employers in manufacturing companies needing ongoing access to workers with higher level and other technical skills from the EU and worldwide to maintain their ability to invest, grow and train in Britain. The EEF recommendations for a new model on migration are set out in our second Brexit Briefing.
Finally the government has published its white paper on the ‘Great Repeal Bill’ which seeks to address the regulatory uncertainty of Brexit. Our first primary call is for the adoption of the current legislative environment to ensure little or no disruption in regulation for businesses and continued trade with the EU. It is our view that in time, once the final deal on our future relationship has been agreed and allowed to bed in that we should work with Government to review our legislation to ensure it is fit for purpose. However we will still need to find a mechanism for UK and EU regulatory cooperation to allow for ongoing smooth trading relationships.
Where next?
This is just the start. Negotiations will probably be very public with all sides fighting a PR war to meet the perceived requirements of different audiences. One thing is clear however. The stakes are very high for industry in the UK and across the continent. It will be important that decision makers are held to account, to ensure they are putting the needs of manufacturers at front and centre.
On Tuesday 14 March 2017 the Association attended a local panel discussion chaired by Matthew Taylor, Chief Executive of the Royal Society of Arts, who has been selected by the Prime Minister to lead an Independent Review of Employment Practices in the Modern Economy.
The scope of the Review is to consider how employment practices need to change to keep pace with modern business models. This is a topic that we will be discussing in further detail at the EEF’s Annual Conference on Wednesday, 7 June 2017.
The Review proposes to address 6 key themes:
At the discussion in Belfast Mr Taylor described his work as covering 3 key themes:
The intention is to pursue these 3 central themes without damaging job creation and flexibility whilst also encouraging the development of quality work.
The Belfast panel of 4 was made of up of representatives from: The Citizens Advice Bureau; Uber (accompanied by 2 Uber drivers working in a gig economy model); and the Irish Congress of Trade Union, together with a Chair of Academic Freelancers.
Whilst it was disappointing that the discussion focused on the traditional forms of employee, worker and self-employed and did not explore the huge range of atypical working arrangements that we see in modern businesses, nonetheless it became clear through the discussion that there are a number of complex issues to explore:
The discussion ended with Mr Taylor emphasising that he wants to encourage a shift in thinking about how we work. His parting words were that if we want to work, whether in a modern or traditional fashion, then jobs must be fair and decent and have the scope to enable people to develop and be fulfilled in their work. This certainly is an ideal that we would all like to see in the workplace but we must wait to see how he proposes to achieve that. Indeed, in Northern Ireland we will have to wait to see if the Assembly, if one emerges from the latest election, puts this on their agenda as an important issue for the Department of the Economy.
Karen Moore will be speaking about this topic at our Annual Conference. Anyone wishing to attend should contact John Gibson at john@eefni.org
Topics will include:
Date: Wednesday 7 June 2017 9.45 am – 4.30 pm
Venue: Titanic Belfast, 1 Olympic Way, Queens Road, Belfast
Cost: Members: £295.00 + VAT (£354.00)
Non-Members: £350.00 + VAT (£420.00)
National Minimum Wage (NMW) and National Living Wage (NLW) rates will increase in Northern Ireland and the rest of the UK from 1 April 2017. Indeed from 2017 onwards all minimum wage rates are to increase on 1 April of each year.
The increases taking effect from 1 April 2017 are:
Employers will probably know that the NLW is a premium added on to the NMW for all workers (not limited to employees) aged 25 and over. The NLW was first applied in April 2016.
The NLW should not be confused with the Living Wage set by the Living Wage Foundation, which is an independent organization that campaigns for a higher voluntary minimum hourly rate of pay calculated according to the basic cost of living.
Guidance
In GB, there is guidance for employers on calculation of the national minimum wage issued by the Department of Business, Enterprise and Industrial Strategy (BEIS) that can be accessed at: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/590170/calculating-minimum-wage-guidance.pdf
There is also a NMW calculator which employees /employers can use to check whether the correct rate is being paid that can be accessed at: https://www.gov.uk/am-i-getting-minimum-wage
ACAS, who are the counterparts to the Labour Relations Agency (LRA) in GB, has also published Guidance on the NMW, which is available on its website http://www.acas.org.uk/index.aspx?articleid=1902
COURSE: Mock Tribunal Workshop
DATE: Thursday, 19 April 2018
TIME: 10.00am to 1.30pm
LOCATION: EEF NI Training Suite 7 Pilot’s View, Heron Road, Belfast, BT3 9LE
COST: Members: £135 + vat | Non-members: £175 + vat
If you wish to attend please complete the booking form below or contact John Gibson on 02890595053.
Refreshments and a light lunch will be provided.
It is not uncommon for Organisations to be the subject of a Tribunal Claim such as unfair dismissal, discrimination on grounds of sex, race, religious belief, whistleblowing etc. The whole Tribunal process from receipt of the Claim to giving evidence and appeal can be a daunting experience. Through the use of simulated Tribunal proceedings, this Mock Tribunal Workshop will provide Delegates the opportunity to improve their understanding of the legal and practical aspects of how the Industrial and Fair Employment Tribunals work and also help prepare for possible future Tribunals.
Who should attend?
This half day Workshop will be of benefit to all HR professionals and managers who regularly chair disciplinary and appeal hearings, grievances to include complaints of bullying and harassment. It will also benefit those who have responsibility for overseeing the Organisation’s Tribunal cases.
On Tuesday 24 January 2017 the Supreme Court upheld an earlier High Court ruling that Article 50 (the mechanism through which the UK will commence the formal process of leaving EU) cannot lawfully be triggered without an Act of Parliament.
So what happens next?
As Members will be aware on 24 June 2016, the result of the EU referendum was declared with a majority of voters deciding that the UK should leave the EU. Following the resignation of David Cameron, the new Prime Minister Teresa May announced that she would trigger Article 50 before the end of March 2017.
The government’s proposal for triggering Article 50 was challenged by judicial review in proceedings before the High Court of England and Wales (Miller and Santos) and the High Court of Justice in Northern Ireland (R (McCord and others) v HM Government and others.
The key findings arising from those proceedings were:
The Supreme Court considered appeals in respect of both of these points and held:
In reaching its Decision the majority of Justices found that whenever EU institutions make new laws, those new laws become part of UK law. Therefore, EU law is an independent source of UK law until Parliament decides otherwise. The withdrawal of the UK from EU Treaties will result in a source of UK law being cut off and certain rights enjoyed by UK citizens will change. In light of this the Supreme Court found that the government cannot trigger Article 50 without Parliament authorising that course.
Members will be aware that Northern Ireland voted to remain in the EU referendum by a majority of 56% to 44%.
There were two legal challenges from Northern Ireland to the UK leaving the EU – the first, brought by a cross-party group of Stormont politicians, argued that the consent of the assembly was needed as well as legislation in Westminster. The second, brought by victims’ campaigner Raymond McCord, argued Brexit was a constitutional change and the 1998 Good Friday Agreement meant Westminster had given sovereignty of Northern Ireland over to the people of Northern Ireland.
However, the Supreme Court Justices said the peace deal covered Northern Ireland’s place in the UK, not its place in the EU. They found that the devolution acts “were passed by parliament on the assumption that the UK would be a member of the EU, but they do not require the UK to remain a member” and that “the devolved legislatures do not have a veto on the UK’s decision to withdraw from the EU”.
On Thursday 26 January 2017 the government published its bill to trigger Article 50 and this will now be debated in the House of Commons. Whilst a number of MPs have stated they will vote against the bill, it is widely expected that it will pass, leaving the government free to trigger Article 50. Many consider the requirement to obtain the consent of Parliament a “technicality” as it is not envisaged that the bill will be defeated, a number of amendments to the bill have already been tabled.
What is the likely impact on the UK and Northern Ireland in particular?
Clearly the outcome of Brexit negotiations will have major ramifications for the UK across the board, and in particular for Northern Ireland which is the only part of the UK that shares a land border with the EU.
From a pure HR perspective, the future of the free movement of labour is high up there on the negotiating priority list. Will UK employers still be able to recruit EU nationals? What about EU nationals already working in the UK? There is also the question of UK nationals working in the EU.
The specific implications for Northern Ireland, and the border, are as yet unknown. The customs union currently allows tariff and paperwork-free trade between the UK and the Republic of Ireland. However the Prime Minister has stated, “full membership of the customs union prevents us from negotiating our own comprehensive trade deals” so she will now seek to negotiate a new customs deal with the EU, which would allow tariff-free trade to continue.
In her recent speech the Prime Minister set out a number of further negotiating objectives for Brexit:
Whilst the Prime Minister also made a direct reference to maintaining the Common Travel Area with Ireland and an insistence that there should not be a hard border, many query how this can be achieved and there remains the possibility that it could lead to the return of some form of customs checks along the Irish border.
In the meantime, Brexit uncertainty is also likely to slow NI’s economic growth in 2016 and 2017 – the most recent Quarterly Sectoral Forecast report published by Danske Bank, suggests that Northern Ireland’s economy will grow by 1% this year and 0.5% in 2017. This has been revised down from the previous report, in which growth of 1.6% had been expected for this year and 1.9% 2017.
Whilst the future shape of UK and EU immigration rules and trade agreements remains under discussion EEFNI will continue to closely monitor the situation and make representations on our Members’ behalf. We will be discussing Brexit and its implications at our Annual Review Conference on 7 June 2017.
The Department for the Economy has recently launched a public consultation seeking the views of interested parties on the potential implications of the Apprenticeship Levy in Northern Ireland, due to be introduced in April 2017.
The collection of the Levy from all employers with a pay bill in excess of £3 million per annum is a matter for the UK Government and will apply across the UK in both public and private sectors. Those organisations with an annual pay bill of more than £3 million per annum will be net contributors to the Levy funds. Those organisations with an annual pay bill of £3 million per annum or less will not contribute to the Levy funds.
At this point in time no decision has been taken on how Levy funding will be re-distributed to employers in Northern Ireland. There is also a concern that if the money raised via the Levy is returned via the block grant, it will not be ring fenced for apprenticeships and may not be spent on apprenticeships or training.
In order to respond to the consultation, the Association seeks the views of Organisations affected by the introduction of the Levy. To do so, we would be grateful if you could provide any responses to the questions below by email (john@eefni.org) by Wednesday, 14 December 2016. The Association will then submit a response to the Department by the deadline of 23 December 2016.
A copy of the full consultation paper is available online to download at: https://www.economy-ni.gov.uk/sites/default/files/consultations/economy/Apprenticeship-levy-employer-consultation.pdf
Christmas workplace parties are a great way of staff coming together to celebrate the festive season. A well organised Christmas Party can boost workforce morale and acknowledge the hard work/commitment that the staff has provided over the preceding year.
However employee conduct at Christmas parties can sometimes turn what should be the most wonderful time into a great headache for Employers over and above the next day hangovers. This note sets out some steps Employers can take to prevent that occurring.
Even if the Christmas party isn’t directly arranged by the Organisation, there are circumstances where the employer will remain vicariously liable for the actions of their employees. Employers are likely to be vicariously liable for acts of unlawful discrimination and/or negligence committed by employees at work related social events. Indeed, there has been many costly legal claims against employers arising out of the party season.
Alcohol fuelled outbursts or fallouts may also find their way back into the workplace with the employer having to take appropriate steps to deal with them. Loose tongues and increased confidence may result in employees propositioning colleagues, discussing performance issues or company secrets or telling the Manager or colleague exactly what they think of them.
However, if the employer can show it took such steps that were reasonably practicable to prevent acts of unlawful discrimination occurring this will provide a defence against any unlawful discrimination claim. One such step is to issue a reminder before the social event telling employees of the standards of behaviour that are expected. Some other steps that can be taken are set out below.
Stopping employees who want to overindulge in alcohol at the Christmas party might be very difficult but with proper planning employers might be able to minimize the chances of it occurring. For example, limiting the amount of free alcohol that is provided and/or ensuring that sufficient amount of non-alcohol supply drinks and food, at appropriate times.
Employers should also consider how best to make the Christmas party as inclusive as possible, being sensitive to employees who do not drink alcohol or eat certain foods. This will ensure that employees with different religious beliefs / faiths do not feel excluded or isolated during the festive period. This consideration should also extend to any entertainment that the employer organises, or is arranged by the venue, so that it is suitable and does not cause offence.
In advance of any office party or work related social event, employers should communicate to all employees about the standard of behaviour expected. This can be done in a way that hopefully won’t dampen the spirit and need not be more than a simple reminder that ‘the Company’s normal standards under the Dignity at Work and Equal Opportunity Policies will continue to apply and that breaches, even if influenced by alcohol’, will not be tolerated and may result in disciplinary action. Unacceptable behaviour that might result in gross misconduct may include excessive drunkenness, use of illegal drugs, unlawful harassment, and violence/assault of a colleague or a member of the waiting/bar staff.
Such a communication may remind staff that at all times their behaviour should be appropriate, responsible and importantly respectful towards their colleagues.
Employers could consider whether to appoint two or three managers to oversee/supervise employee behaviour at the event and to ensure that alcohol intake does not become excessive or a potential cause for concern. These managers may well need to ask employees to leave the party should their behaviour fall below the standard expected. Staff should be informed in advance of the identity of these managers and told that if they have any concerns during the party that they should report them to them.
The effects of the Christmas party may also continue into the next day. Employees may still be disciplined in accordance with the normal company rules if they:
• do not attend work the next day;
• are late for work;
• are unfit for work due to alcohol/ drugs.
Employees who drive company cars should also be reminded of the consequences of driving in excess of the legal limit the next day.
So hopefully following this guidance your Christmas parties will be remembered for all the right reasons.