STATUTORY SICK PAY: COMMITTEE REPORT WITH RECOMMENDATIONS (April 2024)

The House of Commons has published a Committee report, Statutory Sick Pay (SSP) with recommendations to the Government on how to reform SSP. The Government now has two months to respond to those recommendations.

The Report, from the Work and Pensions Committee,  notes that successive Governments have consulted on the need to reform SSP in response to criticisms that the rate of SSP is too low and too many people are excluded as they do not earn enough or have an absence lasting fewer than 4 days.

The Report’s Recommendations and Conclusions include:

1. SSP does not provide adequate support for those most in need against financial hardship during periods of sickness absence.
2. SSP rate is too low and suggests a modest increase to the payment in line with Statutory Maternity Pay (to strike a balance between providing additional financial support and not placing excessive extra costs on businesses.)
3. The Lower Earning Limit should be removed for entitlement to SSP.
4. Whilst there was some support for removing the 3 waiting Days, the Report recommends retaining the waiting days as removing them could have unpredictable consequences. Furthermore the Report notes that there is no way of knowing if removing the waiting days would increase or decrease sickness absence rates.
5. The Law should be amended so that SSP can be paid with usual wages. The Report suggests this could help those with fluctuating health conditions as it would allow them to reduce their hours periodically and better manage their condition.
6. There is a need to consult small and medium-sized businesses to design of a small business rebate for SSP to be introduced alongside our other proposed reforms.
7. That more should be done for self-employed persons who are not eligible for SSP so that they are no worse off than employees who receive the payment; the Committee recommends that the Government should establish a contributory sick pay scheme for self-employed people to provide them with the same level of income protection as would be available under SSP.

COMMENT

It will be interesting to see the Government’s response to the Committee Report and how (or if) they choose to implement the recommendations. We expect any changes however to form part of the overall Government strategy (with the review of occupational health) to get people back in to, and to remain in, work. Any changes to SSP would apply to all of the United Kingdom.

The NATIONAL LIVING AND MINIMUM WAGES INCREASES (1 April 2024)

A reminder that the new rates are now in force and apply throughout UK as follows:

• National Living Wage (now applies to 21 (previously 23 years old) and over) increase from £10.42 to £11.44
• National Minimum Wage (21-22 years old) was £10.18 in 2023 (category abolished)
• National Minimum Wage (18-20 years old) increases from £7.49 to £8.60
• National Minimum Wage (16-17 years old) increases from £5.28 to £6.40
• National Minimum Wage (apprentice rate) increases from £5.28 to £6.40

Government has provided a link to  Check Your Pay

VENTO BANDS: DISCRIMINATION CASES

As many of you may already know, if a Claimant is successful in their claim of discrimination, the tribunal will make a financial award based on the ‘injury to feelings’ for the ‘hurt, upset and humiliation’ caused by the discriminatory act. These awards are called ‘Vento awards’, appropriately named after the case of  Vento v Chief Constable of West Yorkshire Police (No 2) [2003] IRLR 102, which set clear guidelines for the amount of compensation to be given for injured feelings and set out three bands of potential awards

Each year these these are increased in line with Retail Price Index (RPI).

On 25 March 2024, the President for Employment Tribunals in England and Wales issued Seventh Addendum to Presidential Guidance originally issued on 5 September 2017 for the revised Vento bands to apply to cases lodged on or after 6 April 2024 which are:

• Lower Band of £1,200 to £11,700 (up from a ceiling of £11,200) – less serious cases;
• Middle Band of £11,700 to £35,200 (up from a ceiling of £33,700) – for cases that do not merit an award in the upper band);
• Upper Band of £35,200 to £58,700 (up from a ceiling of £56,200) – for the most serious cases, with the most exceptional cases capable of exceeding £58,700.

Whilst this is Presidential Guidance for England and Wales only, it tends to be followed in Northern Ireland by our Tribunals.

Link to full Article:- Vento v Chief Constable of West Yorkshire Police (No 2) [2003] IRLR 102,

The Labour Relations Agency, in partnership with the Northern Ireland Committee for the Irish Congress of Trade Unions (NIC-ICTU) and endorsed by Women in Business, has developed a Guide on Eliminating Sexual Harassment from the Modern Workplace.

It contains a sample Sexual Harassment Policy and is aimed at employers, employees and their representatives.

In the introduction, the Guide sets out the extent of sexual harassment in the workplace. Indeed,  the Equality Commission for Northern Ireland confirmed it is the area they receive most queries on.

The Guide defines sexual harassment in a workplace setting as:

“actions or behaviour with the same purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment”. Sexual harassment occurs “where a person subjects another to unwanted conduct of a sexual nature”.

Examples of types of physical, verbal and non-verbal conduct are provided (e.g. non-verbal conduct would include the display of sexually explicit or suggestive material such as calendars).

The Guide advocates having a stand-alone Sexual Harassment Policy and notes that many simply do not report incidences of sexual harassment.

The Guide then sets out the legal framework in some detail covering the law pertaining to different types of claims, including third party harassment (which differs in Northern Ireland as compared to Great Britain).

In Great Britain, the Worker Protection (Amendment of Equality Act 2010) Act 2023 will replace the existing statutory defence; the statutory defence requires employers to take all steps reasonably practicable to prevent harassment occurring. Instead, there will be a positive duty on employers to take positive steps to prevent sexual harassment and employment tribunals will have the power to provide an uplift of up to 25% in compensation when an employer has failed to take reasonable steps to prevent it. The Guide advocates for the Bystander Approach (also discussed at the Domestic Abuse Conference recently).

The Guide then reviews two recent tribunal cases, reminding employers that having policies and procedures in place is simply not enough and the need for proper investigation.

The Guide also sets out pro-active steps that can be taken, which includes:

• Gather data;
• Do not downplay harassment;
• Have in place an effective sexual harassment policy;
• Takes a zero-tolerance approach to sexual harassment;
• Encourage employees to report sexual harassment and ensure know who / how to report sexual harassment;
• Take allegations seriously, investigate properly and protect from victimisation;
• Train all employees and train managers; and
• Ensure leaders visibly communicate commitment.

Comment

The First and Deputy First Ministers recently confirmed that Ending Violence Against Women and Girls is one of the Executive’s top priorities.

Conor Murphy, Economy Minster, has also made it clear that co-design and co-partnership is the way forward so this Guide very apt. It is likely that this approach will be used in other areas.

(Please see link below).

Eliminating Sexual Harassment from the Modern Workplace

Mock Tribunal Workshop with Employment Judge Neil Drennan KC

Wednesday 5 June 2024 9:30am – 1pm at the Culloden Estate & Spa

Following our sold-out event in 2023, we are delighted to bring you a new Claim for Hearing before Employment Judge Drennan KC.

The Mock Tribunal Workshop is a must attend event for anyone involved in people management (including both managers and HR) and runs in exactly the same way as a real Tribunal.

The Workshop will demonstrate:

• What you can expect on the day in Tribunal
• What to expect in cross-examination and type of questions you could be asked
• How your day-to-day management decisions will be scrutinised
• The importance of documents
• What makes a good (and not so good) witness
• The role the Judge plays and how decisions are made

It is an engaging and interactive session that will undoubtedly prepare you for giving evidence and defending an employment claim.

Places are limited and will be on first come basis.

Members: £205 plus VAT

Non-Members: £245 plus VAT

Price includes refreshments and a light lunch.

Email john@eefni.org to book your place today.

On 26 February 2024 the Economy Minister for Northern Ireland, Conor Murphy, answered questions in the Assembly providing a further insight into the intended way forward for employment law.

Four key points emerged:

1. Significant Employment Bill

In response to a question on whether he will bring forward legislation to enhance workers’ rights he said his officials were developing policy options for a ‘wide-ranging’ and ‘broad’ Employment Bill.

The Minister confirmed that some particular elements or provisions of legislation are ready to go, and that the Department of Economy intended to move forward with those.  We would expect those to include the provisions relating to gender pay gap reporting and the expansion of Statutory Parental Bereavement Leave to include miscarriage, as well as Statutory Parental Bereavement Pay to become a Day 1 Right.

Commenting on the Employment Bill, Minister Murphy confirmed that it will be a substantial piece of legislation. The time frame could take year, and more likely 18 months, before such legislation can be drafted, consulted on and brought to the Assembly.

Departmental Officials are currently engaging with the Irish Congress of Trade Unions to discuss how that Bill could strengthen workers’ rights in recognition that the Minister believes that Trade Unions have a vital role to play in improving worker’s pay and conditions of workers.

2. Zero Hour Contracts

In response to a question on zero-hour contracts, Minister Murphy confirmed his intentions to introduce legislation to bring an end to zero-hours contracts (ZHC). This would be departure from the position in Great Britain where ZHC are lawful but there is a ban in the use of exclusivity clauses in such contacts. However, in Republic of Ireland ZHC have been banned since 2018.

The Employment (Zero Hours Workers and Banded Weekly Working Hours) Bill, a private members’ bill introduced by Sinn Féin MLA Jemma Dolan could well be how ZHC are addressed. This is similar to the banded hours contract provision in the Republic of Ireland.

3. Unpaid Career’s Leave

The Minister confirmed that Career’s Leave be part of the broader consultation on what it is included in an Employment Bill.

He invited those with specific interest in this area, to come to the Department with their suggestions and views.

In Great Britain, from 6 April 2024, employees will be entitled to 7 days unpaid leave every 12 months to give or arrange care for a ‘dependant.’ This contrasts to the position in the Republic of Ireland where employees with 1 years’ service are entitled to unpaid career’s leave for a minimum of 13 weeks and up to a maximum of 104 weeks. It could well be that more favourable provisions that due to come into force In Great Britain could be considered for Northern Ireland.

4. Engagement Forum

The Minister has emphasised that he always follows principle of ‘co-design, consulting and engagement’ with relevant stakeholders.

The Minister has stated on a number of occasions that he wants to strengthen the role of the trade unions, as he sees them playing an important role in protecting the most vulnerable workers which included younger people, women and disabled people.

He heralded the benefits of having a Forum for Engagement when discussing how the Department is doing, obtaining people views on the areas the Department is dealing with and what people think the Department’s priorities should be. He said forums allow ideas to be tested and sharing analysis & opinions is beneficial to the Executive as a whole and make for much better policy and legislative development.

The Engagement Forum (chaired by the The Labour Relations Agency) already exists as it was set up by Department of Economy during Covid. That Forum had representation from all the social partners (business and trade unions) and will be the vehicle for ongoing engagement. The Ministers held his first meeting with the Forum on 22 February 2024, the first of what is expected to be quarterly meetings. 

COMMENTARY

The next 12-18 months will see the introduction of wide-reaching employment laws for Northern Ireland. Whilst what is happening in Great Britain will help shape these laws, we expect Northern Ireland may go further. Undoubtedly the Department will also be looking at the Republic of Ireland to understand what reciprocal laws, if any, apply there before deciding the appropriate way forward for Northern Ireland.

On 22 February 2024, the Equality and Human Rights Commission published new Guidance for Employers: Menopause in the workplace.

The Guidance attracted headlines in the papers stating ‘Firms must help menopausal workers, or face being sued’ (BBC) and ‘Respect the menopause or be sued for disability discrimination, firms told’ (The Times).

That Guidance recognises that workers are protected from discrimination, harassment and victimisation on the basis of protected characteristics including disability, age and sex. Disability will only apply if the menopausal symptoms amount to a disability.

It is important to understand that not all women with menopausal symptoms will be disabled. To be disabled, the symptoms must have ‘a long term and substantial impact on a woman’s ability to carry out normal day-to-day activities.’

If menopausal symptoms amount to a disability, then employers are under a legal duty to make reasonable adjustments. That is not saying that those persons with lesser symptoms should not be supported in the workplace.

[*NB: Other than duty to make reasonable adjustments, laws on disability in Great Britain differ to those currently applying in Northern Ireland]

The Guide has three videos, which are:

1. Menopause and the Equality Act 2010 

This explains the protection under the Equality Act 2010 which applies in Great Britain. In Northern Ireland, workers would be protected under the  Disability Discrimination Act 1995,  Sex Discrimination (Northern Ireland) Order 1976 and The Employment Equality (Age) Regulations (Northern Ireland) 2006   

2. Making Workplace Adjustments:

This video gives examples of some workplace adjustments such as providing rest areas, flexible work hours, changing shifts and making changes to the physcial work environment (e,g, room temperature, ventilation).

It also explains the risks associated with failing to make such adjustments (e.g. costs of legal claims and losing staff) as well outlining the benefits of taking proactive steps (rating staff and attracting workers).

3. Conversations about the Menopause:

The Guidance encourages an open culture where workers feel able to talk about their symptoms and ask for adjustments to their work, involving all workers and not just management.

COMMENTARY

Whether or not menopause is a disability will depend on particular circumstances of each case, but it is not helpful (and wrong) to suggest that all females going through menopause are disabled.

However, it is important that awareness continues to be raised about how menopause affects females in the workplace. This may help some females remain at work, particularly if they are being supported by their Employer.

The UK Government published its Government Response to the Consultation on the Statutory Code of Practice on Dismissal and Re-engagement  instigated following the P&O fiasco in March 2022.

It also updated (simplified & condensed) the Draft Code of Practice on dismissal and re-engagement and is likely to come into force in summer 2024.

The Draft Code provides sensible and practical guidance on steps employers ‘must’ or ‘should’ take before dismissing and re-engaging and is written in plain English. It explains that the Codes uses must indicates that that party is subject to a legal requirement and where it uses should or should not do something, this indicates a recommendation, which is intended to be admissible in evidence and can be taken into account.

The Code’s purpose is to ensure that employers take all reasonable steps to explore alternatives to dismissing and re-engaging and engage in meaningful consultation in good faith and with an open mind.

The Code is only binding in Great Britain (where a failure to follow Code could attract an uplift or decrease in compensation of up to 25%). However, businesses in Northern Ireland considering dismissing and re-engaging would be well placed in defending any claims if they followed the Code. Of course, in Northern Ireland there are some differences to the dismissal processes: the statutory dismissal procedures must be followed for dismissals of under 20 employees and we have a longer collective consultation period (90 days not 45 days) for dismissals of 100 or more employees.

Some Noteworthy Points:

The Code is divided into sections A- I and has 15 pages.

1. Under information-sharing and consultation it says employers should provide information about:

• what the proposed changes are (including what the proposed new and/or revised terms will look like);
• who will be affected by the proposed changes;
• the business reasons for the proposed changes;
• the anticipated timings for the introduction of the proposed changes and the
  reasons for those;
• any other options that have been considered; and
• the proposed next steps.

Commercially sensitive information can be withheld but employers should explain reasons for withholding as fully as possible.

2. In relation to meaningful consultation the Code states that parties should engage with each other openly and in good faith and genuinely consider the points that are put forward. The word negotiation was removed as part of the update.

3. Following consultation, it states ACAS the (equivalent of LRA) should be contacted before raising prospect of dismissing and re-engaging

4. The Code provides for a re-examination period by the employer when they should consider:

• objectives which it is seeking to achieve
• the negative consequences of imposing the proposed changes e.g:
  • risks to the employer’s reputation,
  • damage to relationships with its workforce or representative trade unions,
  • the potential for strikes or other industrial action,
  • the risk of losing valued employees,
  • the risk of facing legal claims, and the associated costs & management time;
• whether its proposals could have a greater impact on some employees than others (e.g. They share a protected characteristic); and
• whether there are any reasonable alternative ways of achieving the employer’s objectives.

5. The Code warns that proposals to dismiss should not be used as merely threats if it is not intended.

6. The Code does not apply in redundancy situations unless dismissal and re-engagement is being considered as an option.

Speaking in the Assembly on 19 February 2024, Mr Conor Murphy the Economy Minister for Norther Ireland set out Four Key Priorities as part of a new Economic Mission.

These are:

1. Create Good Jobs
2. To promote regional balance
3. Raise Productivity
4. Reduce Carbon Emissions
5. CREATE GOOD JOBS.

He noted that many workers and their families are being denied a decent standard of living and this must be changed by:

• investing in affordable childcare
• strengthening trade unions, particularly in low-paid industries.

It will be interesting to see how good work and good jobs are defined and it may well be that some form Employers’ Good Work Charters are endorsed. The Labour Relations Agency has conducted research on an Employment Relations Model for Northern Ireland which may be considered under this objective.

2. TO PROMOTE REGIONAL BALANCE.

The Minster stated that everyone, no matter where they live, should have the same opportunity to earn a living. The Department will fund local economic strategies and prioritise projects that promote regional balance.

3. RAISE PRODUCTIVITY

Improve productivity by using dual market access to grow domestic exports and attract highly productive investment. Investment in skills, research and development, and innovation will also drive better productivity.

4. REDUCE CARBON EMISSIONS.

Reaching Net Zero by 2050 is a legal requirement and a moral obligation to the wellbeing of future generations.

Mr Murphy also announced that the appointment of 4 independent experts on each objective. On the Good Jobs Objective, the independent expert is Dr Lisa Wilson of Nevin Economic Research Institute an organisation which is supported by The Irish Congress of Trade Unions & all of its affiliate unions.

The Good Jobs Objective is to increase the proportion of working-age people in good jobs.

He stated: “It is not acceptable that being in work does not guarantee a reasonable standard of living. This is particularly the case for women and people with disabilities, who disproportionately make up the low-paid.

The Plan increases the number of people working in Good Jobs includes:

• Investing in affordable childcare and fair pay for childcare workers
• Creating more and better paid apprenticeships and skills academies
• Replacing zero-hour contracts with contracts that provide flexibility and protect workers rights
• Strengthening the role of trade unions, particularly in low-paying sectors
• Altering our economic structure by supporting industries that provide good jobs.
• Harnessing the unrealised potential of the social economy.

COMMENTARY

The Plan gives clear insight into the immediate direction for employment law. Certainly, Norther Ireland will not be following Great Britain in terms of trade union laws and indeed  it would appear that we will be going in the opposite direction. There will be no equivalent to the Strikes and Minimum Service Act or any consideration of using agency workers to replace striking workers.

Zero-hour contracts could be on their way out and replaced with a contract that is more balanced between worker and business.

In terms of good work expect more incentives for business that provide good jobs. We will wait to see how ‘Good Work’ is defined. As stated above we could see more types of Good Work Charters / Models being endorsed.

The full statement can be viewed here and announcement here

Following on from updated Code of Practice on Preventing Illegal Working, on 8 February 2024 the Home Office has published an updated Employer’s Guide to Right to Work Checks.

The updated Guide applies throughout UK to right to work checks conducted on or after 13 February 2024.

The most significant updates (reflecting in part the increased penalties and updated Code) are:

1. Increase to the maximum Civil Penalty for non-compliance with the Right to Work Scheme.

The civil penalty for employers will be raised to £45,000 per illegal worker for a first breach and £60,000 per illegal worker for repeat breaches.

2. Right to Work Checks For EEA Citizens & Non-EEA Family Members Without Lawful Immigration Status

Organisations will have a continuous statutory excuse if for example, EEA citizen provided their valid EU passport or national identity card to prove their right to work prior to 30 June 2021. However if the Organisations then identifies that the EEA citizen / non-EEA family member in workforce has not applied for EUSS (perhaps discovered through audit or retrospective check) and therefore does not hold any other permission the Guide now states:

“If an employer identifies an existing employee who no longer has a right to work, they are required to take the appropriate action. This may include contacting the Home Office for support or taking steps to terminate employment.”

Therefore the 28-day concession to allow late applications to the EU Settlement Scheme has been removed.

3. Annex B (Employment Of Specific Categories of Workers): Supplemental Employment

The Guide also states that the Organisation must take steps to ensure that any worker engaged on supplementary employment meets the requirements by for example asking the worker to provide a letter or other evidence from their main sponsor confirming:
a) They are still working for sponsor;
b) Job description & occupation code of sponsored employment (if supplementary employment not in shortage occupation);
c) Their normal working hours.

The Organisation must also ask the worker if they are doing any other supplementary employment with another employer. This is to ensure the worker is not be doing over 20 hours a week in total of supplementary employment.