On 11 January 2024 the Government published Statutory guidance Explanatory memorandum to Acas Code of Practice on requests for flexible working. This set out the Government’s response to Consultation that ran from for eight weeks from 12 July until 6 September 2023 and received 162 responses.

The main changes to the flexible working regime are:

1. Introduces new requirement for employers to consult with employee before rejecting any flexible working request
2. Allows employees to make two statutory flexible working requests (rather than one in any 12-month period
3. Reduces the time frame for employer to consider and respond to the request from 3 months to 2 months.
4. Removes the existing requirement for employees to explain what effect, if any, the change would have on employer and how that might be dealt with.
5. Makes the right a day 1 right

The Government response summarises the responses received from employers and confirms that it intended that the Code will come into force in April 2024 with the new legal framework

Again with the potential return to Stormont it is likely that Ministers will look at what is happening in employment law both East – West and North – South to determine if similar rights are appropriate for here.

At the start of January 2024, The Draft Paternity Leave (Amendment) Regulations 2024 were published. These Regulations and will amend the right to paternity leave in relation to requirements in two main ways namely:

• When paternity leave must be taken: it extends period it must be taken from 56 days to 52 weeks after the birth or
• How it can be taken: parents can now choose to take either 2 non-consecutive weeks’ paternity leave or a single period of either one week or two weeks instead of one block.

The Regulations are expected to come into force on 8 March 2024 and proposed to take effect in relation to children whose Expected Week of Childbirth (EWC) or expected date of placement is on or after 6 April 2024.

Of course these Regulations only applies to Great Britain. Hopefully with the positive news about Stormont, we will now begin to see new rights and laws being considered for Northern Ireland and hopefully the current divergence between Northern Ireland and Great Britain will be narrowed. Certainly many employment related laws in Northern Ireland have not been reviewed for a significant period to consider if they are actually fit for purpose.

On 23 January 2024, Home Office issued its Updated Code of practice on preventing illegal working: Right to Work Scheme for employers which comes into force on 13 February 2024. This is the sixth version of the Code updating the previous version issued in March 2022.

The Code applies to all:

• Right to work checks from 13 February 2024 and;
• Any follow up check (even if the initial check was done under a previous version of Code)

Importantly it confirms that the increased civil penalties (which will triple) will come into force from 13 February 2024.  These increased civil penalties apply if employers employ persons without the appropriate immigration permission in UK. The increases are:

• From cap of £15,000 per illegal worker (for the first breach) to £45,000 per illegal worker
• From cap of £20,000 per illegal worker (for repeat breaches) to £60,000 per illegal worker.

Following, conducting right to work checks in compliance with the Code provides employers with a statutory excuse against employ persons without the appropriate immigration permission in UK and avoids liability for payment of these penalties.

Organisations should be aware the requirement to conduct right to work checks only applies if employment commenced on or after 29 February 2008.

The Code applies throughout to Northern Ireland as well as the rest of the United Kingdom.

The Ministry of Justice (MOJ) has launched a consultation proposing the re-introduction of ‘modest’ tribunal fees in Great Britain to pursue a claim in the Employment Tribunals.

Readers may recall that the trade union, Unison, successfully challenged the previous fee regime which was abolished following a Supreme Court Judgment in 2017. The previous regime was structured so that different and higher fees were payable to progress the claim further.

This Consultation states the MOJ has carefully considered the Supreme Court’s  Judgment and has endeavoured to ensure that: ‘fees proposed in this consultation are proportionate and affordable, in line with the judgment.’

Part of the proposal includes that those who cannot afford to pay the proposed fees will be supported by the fee remission scheme, Help with Fees (HwF).

In summary the Consultation proposes:

1. To issue a Claim the Claimant must pay a one-off issue fee of £55 which will cover the entire journey of a claim in the Employment Tribunal. In other words there is no additional fee payable;

2. There is no fee proposed for a Respondent to lodge a Response Form;
3. To lodge an Appeal to Employment Appeal Tribunal fee the Appellant must pay an issue fee of £55. A further £55 would be payable per judgment, decision, direction or order of an ET being appealed;
4. There are a number of Exemptions including those lodging claims against the Redundancy Payment Service (i.e. what a business is insolvent);

5. There are no proposals to change the current costs regime and it will remain the case that each party will bear their own costs.

The Consultation period commenced on 29 January 2024 and continues for 8 weeks closing on 25 March 2024. A reminder that it only applies in Great Britain and does not extend to Northern Ireland.

COMMENTARY

The proposals are more akin to the costs payable to lodge a claim in the small claims court. At such a low level they are unlikely to cover the Tribunal costs particularly when you factor in the administration around collecting them. Whether they will be a disincentive to anyone proposing to pursue a claim remains to be seen.

Northern Ireland was very much against introducing Tribunal fees the first time around and we doubt that there be any appetite to introduce fees here now.

The Consultation can be accessed here.

How far can a Settlement Agreement (known as a Compromise Agreement in Northern Ireland) settle a future claim not actually known about at the time the Agreement was entered into?

This was a question addressed by the Scottish Court of Session (equivalent to the Court of Appeal) in Charles Melvin Bathgate -v- Technip Singapore PTE Limited [2023] CSIH 48.

Overturning the Employment Appeal Tribunal Judgment, the Court of Session held that a Settlement Agreement could settle future claims even if they were unknown of at the time the Agreement was signed.

Facts:

Mr Bathgate was made redundant and signed a Settlement Agreement which settled his claims against his employer. As is common, the Settlement Agreement set out a list of both specific claims (including age discrimination) as well as a general waiver, which included “all claims… of whatever nature (whether past, present or future)”.

Mr Bathgate received legal advice and expected to be paid an enhanced redundancy and notice payment when his employment terminated, along with a further sum to be paid at a later date (Additional Payment) under the terms of a collective agreement. The Additional Payment (AP) was calculated by reference to the collective agreement and only applied to those under 61 years of age, a fact Mr Bathgate was unaware of when he signed the Settlement Agreement.

After the Settlement Agreement had been signed by Mr Bathgate, the Company decided not to pay him the AP as he was over the age of 61. Mr Bathgate subsequently brought a claim for age discrimination.

In Great Britain the Equality Act 2010 allows claims for discrimination to be settled using a Settlement Agreement provided that the Settlement Agreement relates to the “particular complaint”, meaning a complaint known of or in existence. At tribunal, it was concluded that Mr Bathgate’s age discrimination claim had been settled by the Settlement Agreement, even though the alleged discrimination did not occur until after the Agreement had been signed. The Employment Appeal Tribunal disagreed and held that future unknown complaints could not easily be considered ‘particular complaints’, as they would not have occurred at the point that the Agreement was signed. This point was appealed to the Court of Session.

Court of Session

The focus of the Court of Session was on the paragraph in the Settlement Agreement which stated:

“Irrespective of whether or not, at the date of this agreement, the employee is or could be aware of such claims or have such claims in his express contemplation (including such claims of which the employee becomes aware after the date of this agreement in whole or in part as a result of new legislation or the development of common law).”

It was accepted on ordinary principles of contractual interpretation the current future claim was settled. However, it was argued that there was a requirement for Settlement Agreements to “relate to the particular complaint”, meaning a complaint known of or in existence.

The Court of Session held that “particular complaint” does not mean that at the time of the agreement the complaint must be known of; nor its grounds at least in existence.

The Court held that the Claimant’s age discrimination claim had been validly settled by the Settlement Agreement. The Court stated that “a future claim of which an employee does not and could not have knowledge may be covered by a waiver where it is plain and unequivocal that this was intended.” In this case, the Court held it was clear that the Settlement Agreement was intended to cover claims of which the parties were unaware and which had not accrued.

The Court held that “so long as the types of claim are clearly identified and the objective meaning of the words used is such as to encompass settlement … the relevant claims are covered by … the waiver.”

Commentary

This is a welcome decision for employers. It reinstates what was previously thought to be the position and provides finality and certainty to Settlement Agreements.

The Working Time (Amendment) Regulations (Northern Ireland) 2023 were made on 21 December 2023 and came into force on 1 January 2024. They amend the Working Time Regulations (Northern Ireland) 2016 in respect of:

Regulation 15 (Entitlement to annual leave)

Regulation 16 (Entitlement to additional annual leave)

Regulation 20 (Payment in respect of periods of leave)

In summary the Regulations expressly provide for rights to carry over holiday into subsequent leave years where certain circumstances apply. The Regulations also clarify what amounts to ‘normal pay’ for purposes of 4 weeks annual leave.

Whilst the Regulations codify the existing case law – they also go further by placing obligations on employer to encourage workers to take leave and to inform workers that they if they don’t, the leave will be lost.

Carry forward of leave

1. The Regulations provide that workers can carry forward annual leave to the end of the next leave year if they cannot take it as result of Family Related Statutory Leave (maternity, and other specific family-related leave).
2. They also provide that where workers have been unable to take annual leave due to sick leave, they can carry forward annual leave provided it is taken within 18 months of the end of the original leave year.

3. Finally the Regulations also allow a worker to carry forward leave if the Organisation has failed to:

• recognise the worker’s right to leave;
• give the worker a reasonable opportunity to take the leave or did not encourage them to take it;
• has not informed the worker that any leave not taken would be lost

Calculation of 4 weeks’ holiday pay

The Regulations also clarify what must be included in a week’s pay for 4 weeks’ holiday (‘normal remuneration’):

• commission payments, which are intrinsically linked to the performance of tasks which a worker is obliged to carry out under the terms of their contract;
• professional or personal status relating to length of service, seniority or professional qualifications
• overtime payments, which have been regularly paid to a worker in the 12 weeks preceding the calculation date.

COMMENTARY

The Department for Business & Trade has published Guidance on ‘Holiday pay and entitlement reforms from 1 January 2024’ which applies to GB but Paragraph 4 (Carryover of leave) and Paragraph 5 (Holiday pay calculations) could help understand the new NI Regulations.

As this is start of a new leave year for many Organisations (those who use January – December) it is a good time to review your holiday policy and ensure employees know that leave not taken will be lost.

Organisations should also train managers to keep leave entitlement under review, encourage workers to take their leave and inform them it will be lost if they do not take it (unless above circumstances apply).

In terms of what constitutes regular overtime the Regulations state the reference period to be used is the 12 weeks preceding the holiday. This means that the law in Northern Ireland has now set the reference period at 12 weeks (52 weeks applies in GB); if an employee works overtime regularly (or receives payments such as commission) in the 12 weeks immediately preceding a holiday then these payments should be included in the calculation of holiday pay.

We appreciate many organisations may currently use a different reference period. The updated Regulations do not apply retrospectively (i.e. they should not open the possibility of historical claims where a different reference period has been used), but organisations should review the reference period used going forward. Where a different reference period has been agreed, for example, with a recognised Trade Union, it is likely the Regulations will supersede any such agreement and discussions should be opened on this point as soon as possible.

The issue of holiday and holiday pay continues to gather momentum following the recent Supreme Court Judgment of Chief Constable of PSNI v Agnew. Mr Noel Kelly, the Northern Ireland President of Tribunal met with the Tribunal User Group on 6 November 2023 to discuss the way forward. With thousands of pending Tribunal claims, Mr Kelly strongly encouraged the parties to take a very practical approach.

Then, on 8 November 2023, the UK Government published its Response Government Response to the Consultation on reforms to retained EU employment law and the consultation on calculating holiday entitlement for part-year and irregular hours workers.

This is the Response to two Consultations covering holiday pay (and TUPE not covered in this article). The Response considers:

1. Calculating holiday pay for part year, irregular workers (following the Supreme Court’s decision of Harper Trust v Brazel that held the use of the accrual formula of 12.07% did not provide part-year workers with their correct leave entitlement under the Working Time Regulations); and
2. Simplifying rules around working time, record keeping and holiday pay.

In its announcement, the Government said that it is removing obsolete and burdensome EU rules from UK law that could save British businesses up to £1 billion a year.

Whilst these changes will only apply to Great Britain (as employment law is devolved in Northern Ireland), they could help shape what happens here if the Executive was restored. Indeed, there are increasing calls for the Executive to get back to sort out the huge costs of all pending holiday pay claims to the public purse following the Agnew Judgment.

In Summary, laws will be introduced to reform to record keeping requirements under the Working Time Regulations and provisions for annual leave and holiday pay calculations in the Working Time Regulations.

The Response confirms:

1. Distinction between the different types of holidays, i.e. 4 weeks’ Working Time Directive leave (Regulation13) and 1.6 weeks’ Working Time Regulation leave (Regulation13A), will remain and the proposal to create a single pot will not be taken forward.

   2. The use of the accrual formula of 12.07% (that Harper had found breached the Working Time Regulations) will be made lawful for part-year, irregular workers.

   3. Rolled up holiday pay will be made lawful for irregular and part-year workers only.

   4. Rules regarding carry over of holiday following family-related leave absence and sickness will be kept, essentially codifying into law the existing case law.

2. Simplification of record keeping rules to keep adequate records, but not necessarily a full record of all daily working hours.
3. Guidance will be provided on what is normal remuneration (to include, for example, commission and regular overtime) and what amounts to irregular hours.

Shortly after the announcement, the Government published the  draft new laws The Employment Rights (Amendment, Revocation and Transitional Provision) Regulations 2023 which provide more detail about the changes and confirmed that they will come into force on 1 January 2024.

Commentary

These changes will be welcome by Organisations as they will reduce the administrative burden on businesses. The reinstatement of the 12.07% accrual formula will also be welcome as it was considered unjust that those working irregular or part-year were treated more favourably than other workers.

In partnership with Legal Island, Kathryn O’Lone and Michelle McGinley held a webinar to explain regarding the landmark Supreme Court (SC) Judgment in the case of Chief Constable of PSNI v Agnew & Others  which was handed down on 4 October 2023.

The webinar can be viewed Agnew Webinar. In the webinar they explain what the decision means and the steps employers must take to ensure they are compliant with the Supreme Court findings.

The Agnew case originated in the Northern Ireland Industrial Tribunal and was thereafter appealed to the Northern Ireland Court of Appeal with the final decision has been handed down by the Supreme Court.  As a Supreme Court Judgment, it is binding in both Northern Ireland and also Great Britain.

The Supreme Court (in upholding the Tribunal and NI Court of Appeal decisions) confirmed that:

1. A gap of more than 3 months will not necessarily break the chain in series of deductions where there is a common fault or unifying vice factually linking each deduction. What constitutes a series of deduction is a question of fact.
2. There is no rule of law that holidays are taken in a particular order, and the default position is that each day of holiday is made up of a fraction of each type of holiday i.e. the ‘composite whole’ where it is not practical to distinguish between different types of leave.
3. How the appropriate reference period for calculating holiday pay is identified is a question of fact. InAgnew the courts encouraged the parties to take a pragmatic approach by basing it on a 12-month reference period.

The decision has potentially huge ramifications for employers across Northern Ireland and Great Britain who have not been paying holiday pay correctly. For these organisations who already have cases in the Industrial Tribunal these will now be managed to a resolution.

Following the webinar, they also answered several questions sent by delegates and their answers are set out below.

COMPOSITE WHOLE AND DEFINING WORKING TIME DAYS 

1. If leave is taken as a composite whole does that mean therefore that holiday pay should be ‘normal’ for all annual leave entitlement – WTD, 1.6 and enhanced? I missed a bit in the middle so you may have already addressed this sorry.

No – the entitlement for ‘normal’ remuneration only applies to the 4 week’s leave provided for by the Working Time Directive (WTD) and not to all annual leave provided for under the Working Time Regulation’s (WTD) i.e. the addition 1.6 weeks and/ or to any additional leave provided for under the contract of employment.

The import of the composite whole approach is that for each day of leave a proportion or fraction of that leave day will attract an. entitlement to normal remuneration.

For example, if a worker is entitled to 33 days holiday under the composite whole approach each day of leave will be made up of;

• 20/33 will be in respect of the WTD;
• 8/33 will be in respect of WTR;
• 5/33 will be the additional amount under the contractual entitlement.

Only 20/33 of each day of leave (WTD leave) must be paid at the rate of normal remuneration.

2. distinguishing leave – could an employer get around this by stipulating that holidays are broken down according to WTD, 1.6 and contractual?

The default position is that all holiday is viewed as one “pot”, regardless of where it is derived from and each day of holiday will be a mixture of the different types of holiday to which a worker is entitled.

However, the Supreme Court did say that “Insofar as it is not practicable to distinguish between different types of leave then all leave …..worker is entitled must form part of a composite pot.”

This suggest that it may be possible to distinguish each type of leave – i.e., derived from the Working Time Directive (4 weeks); the addition leave under the Working Time Regulations (Northern Ireland) 1998 (1.6 weeks) and; any further contractual entitlement.  Whilst no guidance has been provided by the Supreme Court on how employers may distinguish the leave, it is thought that it may be done by way of (1) contract (2) policy document (3) pay slip.

There are mixed views on the practicalities of distinguishing such leave. In the absence of distinguishing the leave, the default position remains that all leave forms part of a composite pot.

REFERENCE PERIOD AND ONE OF PAYMENTS 

3. Is it possible to calculate holiday pay over a 12-month reference period and make a one-off payment based on the average amount over this time? 

4. Just to check, if a 52-week reference period is used, that should be the calculation used each time an employee takes leave? 

If you have chosen a 52-week reference period, then that is the period you will look back at retrospectively to determine the ‘normal remuneration earned by the individual. 

If you use a ‘rolling period’ then you will need to do a new calculation at the time of each period of leave. If you use a fixed period (e.g. an average weekly wage for the previous year) then you will apply that amount for any leave during the holiday year.

In Northern Ireland, a week’s pay is calculated in accordance with the definition of a week’s pay set out in the Employment Rights (Northern Ireland) Order 1996. This uses a rolling reference period of 12 weeks for workers who have no normal working hours.

In Agnew the Supreme Court agreed with the Northern Ireland Court of Appeal (NICA) that what was an appropriate reference period was a question of fact and that both points should be addressed in evidence in individual cases.

However, the NICA had encouraged the parties to agree how pay should be calculated based on a twelve-month reference period but did not make any findings on this point. The Supreme Court’s comments on this were equally as light.

Having said that, paying a one-off payment is not legally correct as the correct amount of holiday pay should be paid at the time the holiday is taken. The Organisation should check if the amount of holiday pay/ top up reflects the amount of underpayment, then the risk of a legal claim may be low.  The danger is that given this is an incorrect way of paying holiday pay it could constitute an underlying vice and open up the back door to historical back dated holiday pay claims.

NB: in Great Britain (but not Northern Ireland) from 6 April 2020, the GB law was changed increasing the reference period from 12 weeks to 52 weeks.

You should take specific legal advice in relation to implementing this approach for your business.

5. Where an employer has a scheme of retrospectively calculating and paying holiday overtime does this protect against further historic claims back to 1998?

 See also above. Again, this is not legally correct, as the correct amount of holiday pay should be paid at the time the holiday is taken. However, if the amount of holiday pay that is eventually paid is correct, then the risk of a claim may be low. The Organisation should check if the amount of holiday pay/ top up reflects the amount of underpayment, then the risk of a legal claim may be low.  The danger is that given this is an incorrect way of paying holiday pay it could constitute an underlying vice and open up the back door to historical back dated holiday pay claims.

You should take specific legal advice in relation to implementing this approach for your business.

6. We have sales people who have a very quiet month in December and they have asked that the additional holiday pay based on their commission is paid in this month as their commission is so low – is this ok that it is not actually paid when on holidays? 

Strictly speaking this is not legally correct and the correct amount of holiday pay should be paid at the time the holiday is taken. However, if the amount of holiday pay that is eventually paid is correct, then the risk of a claim may be low. If your calculations are incorrect however, this may result in claims potentially going back to the commencement of the employment or implementation of the Working Time Regulations (Northern Ireland) 1998.

The danger is that given this is an incorrect way of paying holiday pay it could constitute an underlying vice and open up the back door to historical back dated holiday pay claims.

You should take specific legal advice in relation to implementing this approach for your business.

WHAT IS NORMAL PAY? 

7. Does an annual bonus effect holiday pay?

There are some issues that have not yet been addressed in the case law, including the extent to which an annual discretionary bonuses and bonuses not linked to workers’ performance should be factored into the week’s pay for holiday pay purposes. Unfortunately, the case law does not provide any definitive guidance on the mechanism for calculating statutory holiday pay to take account of such payments.

Whether your annual bonus is included will depend on the terms of the bonus scheme.

Generally, we take the view that, provided the bonus received is unaffected by the taking of holiday, the worker will already have received the relevant bonus payment in respect of the period of holiday and will not be entitled to more. Therefore, where a bonus is based solely on company performance, there is a strong argument that, provided there is no financial disincentive to taking holiday, the bonus need not be included.

However, bonuses (especially discretionary bonuses) are often linked to performance and there is a risk that a worker who takes less holiday may perform better over the year and achieve a higher bonus.

Calculating holiday pay is often a complex issue, and we recommend that you seek specific advice as to how to apply the current law to your circumstances. 

8. If an employee does voluntarily overtime, would this apply? 

Yes – it is irrelevant whether the overtime is compulsory, guaranteed or voluntary overtime. The key question is – is the overtime regularly worked? All overtime regularly worked should be included in the calculation of normal pay. What is regular is a question of fact to be decided on the particular circumstances of each case.

POTENTIAL CLAIMS

9. We are now paying all holidays at normal pay but prior to this we did not. How far can an employee claim back for? 

This depends on how long you have been paying annual leave correctly i.e., at the normal rate of pay.

If the underlying vice has been corrected and the date of the last incorrect payment of annual leave for your workers/employees was more than 3 months ago, then the worker may be out of time for bringing a complaint to the Tribunal. You also need to into account the mandatory early conciliation process which requires a person to approach the Labour Relations Agency before being able to bring a Tribunal claim. The early conciliation can extend the 3-month tribunal time period by up to a further month.

If the date of the last incorrect payment is less than 4 months ago, and if the worker/employee decides to pursue a complaint to the Industrial Tribunal alleging an unlawful deduction from wages, then the claim can potentially go back to the later of the start of their employment or the implementation of the Working Time Regulations (Northern Ireland) 1998 (23 November 1998).

You may wish to seek specific legal advice on this.

10. We have employees who we have not paid correctly but now have left the company – do we need to try and contact these employees and pay them?

You could adopt a wait and see approach. If the employees have left the company more than 4 months ago, then they will be out of time in pursuing a Tribunal claim. You should be aware that in limited circumstances the Tribunal can extend time if the Tribunal finds it was not reasonably practicable to present the claim within the legal time period.

11. If payment was on basic pay between 1998 and say, 2015 and therefore not compliant, does that mean tribunal claims could be taken?

Claims must be presented to the Industrial Tribunal within 3 months of the date of the last incorrect payment. Therefore, if the deductions relate to the  period 1998-2015 and the underlying vice was corrected in 2015 and since then correct payments have been made, then any new claims would be out of date. 

12. Is the obligation on the employee to state what the loss is?

The employee must demonstrate the precise amount of wages wage that have been deducted. However, given the potential difficulties with historically calculating these sums and paucity of records going back to the beginning of employment/implementation of the Working Time Regulations (Northern Ireland) 1998 it may not be possible to say with exact prevision what is due and owing.

The President of the Industrial Tribunals, Mr Noel Kelly, has encouraged parties to adopt a pragmatic approach in respect of the calculation of underpayments. In his briefing note following the Tribunal User Group Meeting on 6 November 2023 he stated:

‘[Parties] have to be practical about this. It will simply not be possible to produce and to analyse the necessary documentation to fix precise sums in relation to underpayments of holiday pay. In many cases the documentation will simply not exist. In other cases it will be manual documentation or documentation on microfiche systems. Even if the documentation has been retained digitally, it will be a massive task to extract the necessary information and to formulate in a way that will enable a tribunal to assess precisely the amount of holiday pay underpaid.

The practical implication of this is that the only way forward is a broad-brush approach to such settlements. There will have to be standard payments agreed between the respondents and the claimants in respect of different grades, length of service etc. There will inevitably be some winners or losers but there does not appear to be any alternative.’

 Copyright 2023

This document and the PowerPoint presentation are the property of Employers Federation and may not be shared, distributed, copied, reproduced, or reused without our permission.

Whilst reasonable care has been taken in the preparation of this material, neither the webinar, nor the accompanying documentation can be, or is intended to be a definitive statement of the law. Organisations should always check with the Employers Federation before taking action based on this documentation.

On 26 October 2023 we held our Mock Tribunal Workshop at the Crowne Plaza, Belfast. We had huge interest in this event which was oversubscribed.

We were privileged to be joined by part time Employment Judge, Employment Judge Browne who presided over the fictional case of Gillian Blair v MPR Limited.

The claim was one of unfair dismissal and sex discrimination claim. Ms Blair was dismissed for offensive language. She alleged that the dismissal was also an act of sex discrimination and that the Company operated a ‘boys club’.

Karen Moore, our Head of Training started off the workshop with an overview of the entire Tribunal process and introduced the case.

Sara Plower Employment Lawyer, acting in the role of Tribunal Clerk, announced the case as would happen in the Tribunal. EJ Browne then greeted the parties and invited them to do a short opening.

Michelle McGinley, acted in the role of the Claimant’s legal representative and Kathryn O’Lone was the Respondent’s representative. Given there was a discrimination aspect to the case, the Claimant presented her case first and she was called, affirmed and then cross examined. The Claimant demonstrated what to do as a witness: remain calm; be reasonable; answer the difficult questions; and expand on the answers when required.

Following a short break, Karen McGonigle, Employment Relations Manager at the Labour Relations Agency provided an overview of the Agency’s role and different forms of conciliation available.

This was followed by the cross examination of the Respondent’s witness who demonstrated what not to do as a witness: being evasive; defensive; and not having prepared.

The Workshop finished with overview of what makes a good and effective witness before Judge Browne delivered his Decision.

This was an invaluable experience for all of the HR professionals and managers who attended the event and this was reflected in the feedback:

“Brilliant opportunity to witness what a tribunal process may look like.”

“A must attend for all HR practitioners not just those facing Tribunal proceedings”

If you are interested in attending our next Mock Tribunal then please contact info@eefni.org and register your interest. We will then be in contact with the next date.

Our Annual Employment Law & HR Conference was held at the Crowne Plaza on 27 September 2023.

This year our Conference was fully booked and we were delighted to be joined by so many managers and HR professionals from both Member and non-Member organisations.

Our Conference is our flagship event of the year and it’s a great opportunity for networking amongst the various businesses and to catch-up on a personal level.

Importantly, it is also a day full of learning with lots of insights and practical take aways.

Karen Moore, Head of Training (NI & ROI) welcomed all delegates and opened the day.

The morning session then started with Kathryn O’Lone, Head of ROI & Business Improvement leading us through the most topical cases of the year and providing key learnings for employers. Amongst the variety of cases covered, Kathryn looked at the balancing of competing beliefs in the workplace and the latest decision around menopause in the workplace.

Next we had a very practical “What if” session from Sara Plower, Employment Lawyer dealing with the complex issues that can arise when managing absence such as ‘When can you withhold sick pay?‘ and ‘What if they refuse to attend OH?’

After the mid-morning break we heard from our three external speakers. Sharon Didrichsen is the Founder and Managing Director of Specialisterne NI, an organisation whose aim is to help neurodivergent people secure and sustain rewarding careers. Sharon provided a real insight into how businesses can unlock the potential of neurodivergent persons.

Sarah McKay, Vice President of Service Delivery at Concentrix followed with ESG, ‘What does it mean?’ identifying the why in ‘Why even do it?’ and provided a practical pathway explaining how a business can develop their ESG strategy.

The Federation was then privileged to be joined by Vice President of OITFET, Maxine Orr who delivered a thoroughly engaging session overviewing of the process of Judicial Mediation in NI. The Vice President was able to give us an insight into how it is working, including up to date statistics and experience of the Tribunal to date.

Lunch provided a further opportunity to network and catch-up.

After lunch, Kathryn O’Lone lead us through a panel session with: Helen McCann, HR Manager at Kyocera AVX UK; Bridgeen Mullin, Head of Employee Relations – Senior Vice President, Fintru; Sharon Didrichsen and Peter Bloch, Managing Director of Employers Federation. The panel shared insights and experiences on issues such as diversity, recruitment, industrial action and Artificial Intelligence.

Karen Moore then led delegates through a practical scenario covering requests for anonymity during a disciplinary process.

This was followed by Lorraine Toolan, Employers Federation Consultant who addressed workplace grievances through the lens of whether the employer’s approach is helping or harming.

Finally Michelle McGinley, Director of Legal and Policy ended the day with a review of the policy and legal developments throughout the last year and a look forward into 2024.

We would like to thank all who attended the day and to the exhibitors that included:
Action Mental Health; Autism NI; AWARE NI; Cedar Foundation; Disability Action Northern Ireland; Employers For Childcare; Inspire Therapeutic & Wellbeing Services; The Labour Relations Agency; Parenting NI Charity; PIPS Suicide Prevention Ireland Charity; Rainbow Charity and; Women in Business NI