Employers Federation Response to Public Consultation on: Good Jobs Employment Rights Bill (30 September 2024)
07/10/2024
About Us
Employers Federation (previously known as the Engineering Employers Federation Northern Ireland) is a not-for-profit Organisation which has been in existence in Northern Ireland for over 100 years. We solely represent employers, predominantly in the private sector, although we also have some charitable bodies within the Membership.
We advise across an extensive range of industries including engineering, communications, fintech, technology and food. The employers we represent range in size from small to some of the largest private sector employers in Northern Ireland.
We have consulted with a range of member companies about our response including through an in person Briefing Session, collaborating with Manufacturing NI and at our Annual Conference with Departmental Officials. This response reflects the opinions we have gathered. In compiling our response, we have also liaised with our sister Organisation MAKE UK.
We welcome the opportunity to respond to this Consultation.
Executive Summary
Employers Federation Members recognise that employment laws in Northern Ireland are long overdue a fundamental review and need an assessment of whether they are fit for purpose in the modern workplace and economy. We therefore welcome this Consultation and are fully supportive of the Minister’s Economic Vision to increase the number of good jobs and increase productivity across the regions. Many of our Members already have in place rights and benefits above those proposed in this Consultation and take pride in being a good place to work.
We question if legislation is the appropriate vehicle for all the change contained in the proposals and have highlighted areas where we believe that aims could be better achieved through Guidance or Codes. We are cognisance that the Minister’s Action Plan also includes working with the LRA to develop a Good Work Charter as part of the Department’s ’soft’ approach to furthering the objective of increasing the number of persons in good jobs.
We recognise that employment law is devolved in Northern Ireland which provides the opportunity to implement laws appropriate for our jurisdiction. However we believe that we should only do so when it is right to depart. We welcome several of the proposed changes to employment law that would achieve parity with employment laws in Great Britain. For example, for businesses working across both Northern Ireland and Great Britain having the same rules on matters affecting payroll eases the administrative and cost burden on businesses.
We fully support the aim of removing poor business practices and promoting good working practices between employers and employees. Members are broadly supportive of the proposals in Theme A (Terms of Employment), Theme B (Pay and Benefits) and Theme D (Work Life Balance) and believe that further engagement and discussion needs to take place on some of the Departments proposals in Theme C (Voice and Representation).
However, we believe it is vital that Northern Ireland remains seen as a good place to do business and avoids excessive bureaucracy so that we can continue to attract investment and growth.
Whilst we also appreciate the limited timescale left by the Executive’s shorter mandate, we are disappointed that such a fundamental review was launched over the summer months which made has made full engagement with stakeholders difficult. The time pressure on the Department should not override the need to ensure that employers, and other stakeholders are properly consulted in some of the detail of these new rights.
Implementing any change
We recognise that not all proposals will be brought forward within this current mandate but employers remain concerned about the scale and scope of the Consultation.
In order to help employers prepare for the introduction of new rights, we ask the Department, when responding, to clearly identify the proposals they intend to take forward in this mandate and provide a provisional timetable for implementation. We understand that some aspects (such as pay slips) only require secondary legalisation which may permit changes to be implemented quickly. Whilst the change in law may happen quickly, business will need time to prepare and ensure for example, the payroll function can change in time to comply with new laws. Therefore, we ask that in responding the Department provide a provisional timetable.
We also recommend that further areas for Consultation are identified clearly.
Employers have also asked that measures are brought in a staggered manner to allow change to bed down. New policies may need to be introduced, and training completed so that employees and managers know how to respond.
Whilst we recognise there is limited time remaining in this mandate it is vital that in the implementation of any changes through the Employment Rights Bill the right balance is struck between support for employees and that flexibility for employers is maintained. The time pressure should not override the need to ensure that employers, and other stakeholders are properly consulted in some of the detail of these new rights.
Finally, employers are concerned about the potential cost burden of the total package of measures. We welcome some clarity, and hopefully some reassurance, from the Department about the funding of such changes, The Department’s Consultation on Domestic Abuse Safe Leave also closed on 27 September 2024. The potential uptake of this new right (and consequential cost) is unknown. That cost will be borne solely by employers; employers should not be asked to fund any other measures particularly at times when some of our Members are proposing redundancies.
We have set out our views and feedback to each of the Themes below and have not provided a response to each of the 190 questions. Where we could we have attempted to answer the questions under each heading.
THEME A: TERMS OF EMPLOYMENT
Zero-Hour Contracts
The proposal is to replace Zero Hours Contracts (ZHC) with contracts that provide flexibility and protect workers rights.
An outright ban is not supported but Members have no issue with a ban on exclusivity clauses when engaged on a ZHC. ZHC are often liked by younger employees who are filling gaps between studies, older employees and seasonal workers who wish to work as and when they choose. Any model should still permit this.
Care needs to be had in this area not to go to far and cause unintended consequences.
ZHCs changes won’t impact on most employers and we have only a limited number of Member Companies that use ZHC. For those that do, they are used to recruit flexibly and react changes in demand. For example, the ability of businesses such as in hospitality to support pre-Christmas increases in production, or food industries to flex. Therefore, it is important that the Department should not seek to end flexibility in zero hours contracts where there is a mutual benefit to the employer and employee in such an arrangement.
Prior to making any decision in respect of whether to introduce a ‘banded hours’ regime in Northern Ireland, we recommend that the Department engage with its counterparts in the Republic of Ireland (ROI). ROI introduced this right in 2018. We understand that the number of individuals exercising their rights under Section 18 of the Organisation of Working Time Act 1997 is lower than anticipated and implementation has been far from straightforward.
We are also aware that in GB the Government has decided not to implement The Workers (Predictable Terms and Conditions) Act 2023 that had been expected to come into force in September 2024. That Act would have given workers and agency workers the right to request more predictable terms and conditions of work but not a right to have a more predictable contract. We now expect that the GB Employment Bill (expected to be published imminently) will set out the position on ZHC and provide workers with a right to: a contract that reflects the number of hours they regularly work, based on a 12-week reference period; and reasonable notice of any change in shifts or working time, with compensation that is proportionate to the notice given for any shifts cancelled or curtailed. We recommend that the Department review those proposals before deciding the appropriate way forward in Northern Ireland.
Understanding Employment Status and addressing Bogus Self
Employment
This is an area that further consultation and engagement is required to understand what the issues /concerns with current position are and would any change address those
concerns.
However, it maybe that the Consultation is conflating two separate issues of: employment and bogus self-employment. We view them as two entirely different matters.
In terms of employment, it is recognized that the 3 categories of persons: employee, worker and self-employed cause difficulties in employment rights legislation particularly as the definition of what constitutes an employee varies across different laws.
Separately we have the growth in modern forms of employment including those engaged in digital platform working where persons are paid per gig. This form of working could be addressed along the lines proposed by the EU in its Digital Platform Directive which was passed by the EU earlier in 2024.
The added complexity recognised by the Consultation is that tax only has 2 categories: employees and self-employed. If the issue to be addressed is underpaying tax it maybe that can be addressed in a separate way. As tax is not a devolved matter, it can only be addressed in a UK-wide approach.
We do not find that bogus self-employment is a real issue amongst our membership. Most persons working as self-employed tend to be highly paid consultants who are choosing to work in that way and not lowly paid workers.
We appreciate that no system is ideal but given how established the 3 categories are believe it is appropriate to retain in the interim period. Any proposal to deviate from this would require a full in-depth consultation and proper impact assessment to identify unintended consequences. To work in practice any change would, in our view, have to Employers Federation EF Consultation Response to Good Jobs Employment Rights Bill be UK wide change and not limited to Northern Ireland. We are cognisance that creating a Single Status is also being considered by the Labour Government.
Dismissal and re-engagement
Regrettably the P&O fiasco cast a bad light on fire and re-hire when it was purely a case of fire and no rehire. P&O exploited a loophole in the law that allowed the company to escape liability on grounds of seafarer laws. These ‘bad facts’ should not be allowed to create ‘bad laws.’
In our experience dismissal and re-engagement is wholly the exception and not in anyway common practice. It is extremely rare for businesses to use the ‘fire and rehire’ tactics – which is a very emotive term. This is because it is only ever used as a last resort in negotiations over terms and conditions. Many businesses would not use it either on principle or because of the risk of unfair dismissal claims and significant reputational harm.
We are generally supportive of a Code or Guidance being produced that codifies the existing case law and is a proportionate response to this issue. We would be concerned that an outright ban would limit necessary flexibility for businesses or lead to unintended consequences (e.g. making a redundancy and subsequently wanting to rehire the employee due to improved company performance but being unable to do so under new regulations).
Redundancy Offence to Notify
Some Members have stated that overall responsibility should not rest with an individual but be a Company issue. They have suggested that introducing unlimited fines for directors, may disincentivise people joining Boards or may result in prohibitive insurance costs, or both. We recommend keeping the rules as they are or limiting liability to £5,000.
Written Statement of Particulars
For most employers this will not be a major issue, but we recommend that any change is notified to employers as early as possible so that they can amend their documentation and systems to ensure compliance with new laws.
Some Members have commented that with temporary staff, it is not always easy to set out set terms and conditions of employment until the contract has been going for a while and trends are established.
Agency Workers: Pay Between Assignments
We are not aware of the number of Pay between Assignment Contracts (PBA) in use in Northern Ireland. Our experience is that the number of PBA contacts has vastly diminished in Northern Ireland and most agency workers are engaged on parity contracts.
Again, it is important that any change is notified to employers as early as possible so that they can plan ahead for increased budget and ensure that they are acting in a compliant manner. There may also need to be a transitory period to phase out PBA contracts currently in place.
Key Information Document for Agency Workers
We have no issue with the proposals and recommend that any change is notified to employers as early as possible so that they can amend their documentation and systems to ensure compliance with new laws.
Employment Agency Inspectorate and Information Sharing
The Recruitment Agencies we have spoken with in our membership have no concerns with this proposal.
EAI Enforcement Powers
The Recruitment Agencies we have spoken with in our membership have no concerns with this proposal.
THEME B: PAY AND BENEFITS
Payslips
We have no concerns regarding the Department’s proposal to ensure all workers receive an itemised pay statement. We believe the overwhelming majority of workers already receive a pay slip even in the absence of an express statutory right.
Our Members are supportive of the Department’s aim to provide pay transparency so that employees understand how their pay is calculated and whether there are any mistakes with the pay that they have received. This will ensure any discrepancies or errors are resolved expediently which is beneficial to employee/employer relations.
Parity with Great Britain on this issue is very welcome as many businesses work across the UK and avail of payroll services that are UK wide. It can be difficult, and expensive for businesses if there is deviation in Northern Ireland as it can require a bespoke payroll system to be set up that can be costly for the business.
Members have asked that any change is notified to employers as early as possible so that they can amend their documentation and systems to ensure compliance with new laws.
Holiday Pay Reference Period
Members very much welcome the reference period being a period of 12 months and would ask that it is a fixed reference period rather than a rolling one as this would make it easier for the employer to calculate holiday entitlement.
A fixed reference period also allows for a fixed pot of holiday entitlement to be identified at the beginning of the leave year, which is helpful.
The general law on holiday pay and entitlement is extremely complex and challenging for both employers and workers to understand. Members are bitterly disappointed that the Department has not taken the opportunity to improve this area particularly given the huge cost of getting it wrong for business in Northern Ireland as we do not currently have the 2 years back stop that is in place in GB.
Members have asked the Department to consider introducing this 2 year back stop.
Members have also requested that calculating holiday pay for part year, permanent workers is clarified as the current system is grossly unfair.
We recommend that a further review should also include:
- Creating a single 5.6-week holiday entitlement by merging the four-week
entitlement drawn from the Working Time Directive and the additional 1.6-week
entitlement enshrined in the Working Time Regulations – and clarifying the rights
and benefits attached to this – is an important part of achieving simplification
and clarification. - Consider calculating holiday pay on the basis of 5.6 weeks of statutory annual
leave at basic pay - Confirm that rolled-up holiday pay is lawful – particularly for part-time and
irregular hours workers - Permit the calculation of holiday using the formula of 12.07% would ensure
consistency and simplicity from an employer’s perspective, reflecting the
statutory annual leave entitlement.
Record Keeping Requirements
We welcome the fact that the Department is not making any proposals in respect of record keeping requirements under the Working Time (Northern Ireland) 2016 but is rather seeking views of stakeholders in respect of how the current rights are working in practice and if there is a need for reform.
At present, employers in Northern Ireland are required to keep records in respect of the 48 hours weekly opt out, hours of work for night working and young working but not for rest breaks or daily hours worked.
There are more onerous obligations in ROI where employers must keep detailed records of the hours worked each day and week as well as a record of any leave, rest periods and breaks employees take. We understand that employers struggle with these onerous obligations in practice and believe they are overly burdensome.
In GB, the Government has confirmed that businesses do not have to keep detailed records if they can demonstrate adequate compliance with WTR in other ways.
We submit that the existing requirements are working well in practice. Anecdotally we are told that there are little/no disputes in the workplace whereby employees allege that they have not received adequate rest breaks etc. We believe additional reporting obligations are unnecessary and will compound the difficulties being experienced by employers at a time of significant change in respect other changes which are perhaps more beneficial or needed.
Our Members primarily find limited record-keeping under the Regulations helpful where there is a meaningful impact on employees’ pay. Beyond pay-related reasons, there are few areas where Members have identified a need to keep extensive records under the Regulations.
There is a strong element of trust between the employer and employee in relation to working hours, particularly after the Covid-19 pandemic and the subsequent changes in working patterns and preferences across industry. Employers may often rely on relationships between line managers and employees to foster this trust and encourage employees to work their expected hours and complete tasks without the need to have extensive formal recording of working hours in place across the workforce.
Right to Disconnect
The Right to Disconnect can only be considered as part of the wider debate on flexible working. Post covid we have seen a huge growth in flexible working both in terms of the hours worked and the locations people work from.
To accommodate this flexibility means that not everyone works 9-5pm. Some employees choose to work outside of normal hours, whilst other employees like to split their daily hours to suit childcare needs, for example for school pickups etc and therefore some employees working hours are not standard.
Additionally, some of our Members work across different time zones and it is important that these persons can connect to their teams and customers in different time zones. Any provision must be able to accommodate this.
The Working Time Regulations already govern working hours, rest breaks and rest periods. We do not see a need for further laws in this area. However, Members are generally supportive of Guidance / Code that sets out good practice but recognises that flexibility is required particularly for those groups who work various work patterns and/or across different jurisdictions.
For some Members, they have processes in place (both formal and informal) where employees’ time outside of working hours is protected. This might be through team leaders ensuring that employees are able to switch off outside of work and respect boundaries in terms of communications etc, or a more general expectation that if somebody is out of the office then this is respected.
Members noted that there will be exceptional circumstances where it is appropriate to communicate with employees or ask for specific tasks to be completed, for example roles that are understood to be performing business-critical activity or would be covered by a business continuity plan. The importance of everybody understanding this and which roles are important for out-of-hours contact was emphasized.
A question that was highlighted to us related to the definition of ‘disconnecting’ and how being ‘connected’ and ‘working’ would be differentiated.
THEME C: VOICE AND REPRESENTATION
Our Members understand the importance of providing employees with a collective voice in the workplace and that this must be a voice that can influence decision making.
We have in our Membership businesses that recognise trade unions in their workplace for the purposes of collective bargaining and enjoy strong positive workplace relationship with those trade unions.
We also have Members that are not unionised who have very effective alternative mechanisms in place that provides employees with a strong collective voice. These industries tend to be the modern growth industry with a younger workforce profile. Statistics from the trade unions show around three-quarters (75%) of trade union Members are aged 35 or over.
In considering policy, we recommend that the Department bear in mind these other ways of providing an effective collective voice in the workplace.
Furthermore, the laws in Northern Ireland have always fostered a co-operative working relationships between employers and unions. For example, Northern Ireland has not implemented counterpart measures such as GB Trade Union Act 2016 nor have we considered other measures such as minimum service levels.
We recognise that the Minister has set out his priority is to strengthen the trade union movement. If that is for the purpose of increasing the number of persons in good jobs then we are unsure how some of the proposals in this section will achieve this.
If the aim is to ensure employees have an effective mechanism to have a voice in the workplace, then again we do not see how some of the proposals for expansion of trade union rights into smaller businesses, would enhance job creation or improve the quality of jobs in Northern Ireland.
We have read and endorse the views set out in the joint letter to the Minister from those employer organisations that are part of the Engagement Forum i.e. The dynamics of
organisational cultures are sensitive and business places high importance on preserving a positive and collaborative work environment. In many larger businesses, trade unions currently fulfil their advocacy role without compromising the core values and organisational culture, however there is a strong resistance to the introduction of any measures that would upset this balance. There is also strong resistance, especially amongst medium and smaller businesses, to any measure of compulsion to accept trade union involvement below the current threshold of 21 employees.
Members also believe that the law can be a very blunt instrument to effect change in this area and that the focus should be on training and building positive working relations with the unions and employers.
Workplace Access
As stated above, our Members who recognise trade unions have collective agreements in place that govern matters such as workplace access. The proposal around workplace represents a significant change in culture and is resisted by our Members. In the modern day, physical access to workplaces is not generally required for the union to communicate with Members. Indeed much communication from unions takes place virtually through whatsapp, social media, instant messaging and unions are very adept at this form of communication.
In terms of physical access to premises, employers would decline access for reasons that includes to avoid operational disruption. Co-ordinating union visits without disrupting daily operations is very difficult, especially in industries with continuous workflows or strict schedules.
This issue of trade unions to access private employers’ workplaces is a very complex issue and more needs to be understood in terms of what is proposed. For example, leaving aside the risk of legal disputes if access is denied or if the process is not handled correctly (and the proposal contains no information on enforcement) a general right of access to private space could potentially infringe Article 8 of the European Convention on Human Rights (ECHR) which protects the right to respect for private and family life.
Employees also have the right to choose to join a union or not and it is important to balance the interests of unionised and non-unionised employees.
We do not believe that equivalent rights in place in New Zealand should be replicated in Northern Ireland.
Collective Bargaining: Recognition
The proposal to lower the threshold for trade union recognition from 21 to 11 would only capture 5% more businesses and would seem a disproportionate impact for these smaller businesses. We anticipate it may be difficult for small firms to meet the cost of paid time off for trade union duties. Smaller firms also find it easier to deal direct with employees rather than through a third party.
We are of the strong view that the threshold should be maintained at 21.
Introduction of collective sectoral bargaining
We are aware that the Labour Government is considering process of sectoral collective bargaining to determine employee pay and conditions.
We have also experience of working with national agreements in the 1980’s when the economy and businesses operated in very different environment. Having said that these Agreements were extremely difficult to operate under.
We believe that this issue requires further in-depth consultation particularly as we are aware of the lack of success of similar initiatives in some countries and understand that the Fair Pay Agreements in New Zealand were repealed. We are of the view that given the wide variations in industries such as engineering, manufacturing it could be difficult to define who was covered in the ‘sectoral group’ and there is insufficient similarity between industries to make this workable in practice.
Many of our Members value constructive relationships with their trade unions and company-level collective bargaining remains a feature of many manufacturing workplaces. Our Members are keen to preserve the freedom of employers to negotiate on pay and conditions relevant to their workplace to according to their individual business.
Balloting & Notice
Members object to the proposed reduction to notice from 7 to 5 days which is already a very tight time frame. It is unclear if this is calendar (and we assume it is) or working days. In any event, we do not see how reducing the notice period will further the aim of increasing the number of good jobs; there is no rationale provided behind the proposal, other than the trade unions have requested it.
Electronic Balloting
Our Members have no objections to a move to electronic balloting.
However, the Independent Scrutineer plays an important role in the balloting process, and it is vital that they are retained whether the ballot is completed by post or electronically. Given the huge impact to business and employees when industrial action is taken, the independent scrutineer is crucial to ensure transparency and compliance with legal provisions. For example, they could check that all in the bargaining unit have been sent a ballot, check the wording of the ballot, count the responses and do a report confirming if everything was conducted in accordance with the law.
We do not see how removing the need for scrutineer would contribute to the overall aim of increasing the number of persons in good jobs.
Protection for Representatives
We believe that the current laws adequately protect trade union officials with the exception of one area (see below). The law as it currently stands provides for an application of interim relief in circumstances that they were dismissed as they:
- carried out duties as a health and safety representative or a pension scheme
trustee - acted as, or was, a candidate to be an employee representative in collective
redundancy or TUPE - took part in duties or activities as a trade union representative
- took part in activities relating to trade union recognition
- asked for, or acted as, a companion in a disciplinary or grievance meeting
Protection for Employees taking part in Industrial Action
Employers recognise that employers have right to strike and that right is qualified, not absolute.
We believe that the current laws of prohibiting dismissal of employees for at least first 12 weeks of any industrial action, is sufficient. Twelve weeks is a significant period of time for industrial action to occur. Generally during this period the business will be exploring ways to resolve the issues with the union including through the assistance of the Labour Relations Agency. By that stage, if agreement has not been reached then it is unlikely to be reached and the parties will have reached a stalemate.
Our Members are against any proposal to extend this period beyond 12 weeks and if anything, we suggest that it should be shortened and capped at 8 weeks. Any extension is only likely to detrimentally impact working relations and negatively impact the business.
Furthermore it is very difficult for trade union Members to break the strike line and attend the workplace even if during the course of the industrial action they are of the view that the offer being made can be accepted. Some trade union Members feel compelled to continue to strike as the union has not accepted the offers.
However, we do recognise that the law needs amending to close the loophole identified by the Supreme Court in case of Secretary of State for Business and Trade v Mercer [2024] UKSC 12. We recommend that any change is only implemented following a separate consultation on this as it raises sensitive policy questions with important practical implications.
Facilitating Productive Workplace Relationships
The LRA has a Code on Disclosure of information to trade unions for collective bargaining purposes and there are laws and case law that govern the collective
bargaining process. These prevent direct offers being made to employees until the collective process is exhausted.
Our Members are of the view that Guidance, rather than a Code, that sets out principles of behaviour would be welcome.
Any Guidance should signpost the stage when parties have exhausted the process and negotiations are at an end.
The proposal for a Code provides no information on remedies available if a party believes that the Code has been breached. Our Members are concerned that this could add a further layer of bureaucracy and litigation focussing on whether any Code was breached and applying for sanctions or penalties rather than resolving the dispute. Particularly as our reading of the Code is that the principles of good faith contained in the New Zealand Code are in parts vague and open to different interpretation by employers and employees. This can create confusion during negotiations and workplace interactions and lead to satellite type litigation.
If the aim is to foster better working relations then we believe more should ground work should also be done in the area of training and promoting good practice with a focus on how to conduct good negotiations.
Information and Consultation: Definitions & Thresholds
Our Members are of the view that the definition ‘undertaking should be retained and not replaced with establishment. This is particularly so as the word ‘establishment’ is somewhat lost in the context of digital remote working. Changing it could result in ICE type agreements being made for a very small number of persons and require management time away when there are other effective ways of engaging.
Unanimously all who engaged with us stated that a reduction to the threshold required from 10% to 2% was far too low. This would mean, for example, that in a group of 50 employees an agreement would be put in place if 1 person.
As we stated above, we understand the importance of providing employees with a collective voice that can influence. However this would seem a very blunt mechanism to achieve that aim and could have unintended consequences.
Transfer of Undertakings (Protection of Employment) Regulations
We welcome the inclusion of TUPE in the Consultation and recommend that all the changes introduced in GB in 2014 including (but not limited to) the micro business exception are also introduced in Northern Ireland.
We agree that the Department should allow direct consultation with employees on TUPE transfers for all small businesses and businesses of any size where fewer than 10 employees are transferring.
We have been involved in cases involving split contracts which cause real legal and practical difficulties both for the employee concerned and the business. Employees may find themselves working for multiple employers who might provide conflicting instructions on where and when they should be working. This can also complicate their status and benefits that they are entitled to under the contact.
Members also support the law confirming that TUPE only applies to employees and does not extend to workers.
Public Interest Disclosure (Whistleblowing): Annual Duty to Report
Our Members have no views on this.
THEME D: WORK LIFE BALANCE
Theme D principally seeks to bring Northern Ireland in line with the changes introduced in Great Britain over last 2 years to strengthen the protection around ‘work-life balance’. Our Members support the principle that employees who enjoy a positive work life balance are more likely to be happy, engaged workers and more productive.
Employers have some concerns about the timing of the introduction of these rights as well as some of the finer details in respect to how these additional rights will operate.
Employers therefore ask that detailed and timely guidance is provided in respect of each of the statutory right being introduced and that the implementation dates are staggered, with generous lead in times, to ensure employers have sufficient time to prepare and put the necessary systems in place. This will help avoid disputes or litigation arising over a lack of clarity and a nervousness about making a mistake in these sensitive circumstances.
To achieve the Department’s aim of creating more good jobs, it is important that the Department invest and provide funding for line managers training. Outside of the technical skills gap, we hear a lot from Members that they struggle with people/team management skills, so there’s a broader point in policy that there needs to be better support for leadership and management training.
Flexible Working
Our Members are committed to offering flexible working where this is feasible and are broadly supportive of the overall policy aims in relation to flexible working.
There are certain industries such as manufacturing it is more difficult to accommodate requests as there are limited in their ability to offer all forms of flexibility to all categories of worker due to the requirements of the production line. Production roles can rarely be carried out at home as they involve the use of equipment that is only available at the employer’s premises. In addition, offering flexibility as to hours can be challenging in production roles as it is often the case that all Members of a production line need to be present for a full shift in order for all tasks to be completed. That said, the shift system may already offer employees some degree of choice as to when they work.
Introducing a statutory day 1 right will contribute to a growing perception amongst individuals that they are entitled to work flexibly (as opposed to just being entitled to make a request). This has an employee relations impact, as expectations of the ability to work flexibly in some roles may be unrealistic. Member companies report that this expectation can impact on the productiveness of a discussion about a flexible working request and result in disappointment and low morale if the request is ultimately refused. Any guidance should however make clear that it is a right to request and not to have.
Furthermore, many member companies place high value on new employees working their probationary period before being able to request flexible working. This is to ensure that they receive the most out of the training provided during the probationary period.
The same applies to home and hybrid working; many also felt that it is important in certain roles for the employee to be present in the workplace during the probationary period, to allow for effective integration into their team and to make it easier to pick up on and deal with any problems. Some informal aspects of training on the job can be lost if the new starter is not in the same room as their team.
If the right to request flexible working from the first day of employment is introduced, it is important that additional business reasons are included to mitigate some of the impacts identified above. In particular the practical concerns employers have about the importance of the first months of the employee’s employment for training, induction and embedding the employee within the organisation. Two possible reasons are:
- It is too early to determine the impact the request will have on the business, other staff,
or the performance of the employee; - Flexible working will have an adverse impact on the effectiveness of the employee’s
induction, training and/or probationary period.
We also received feedback from our sister organisation Make UK from some of their Member Companies, that there were some circumstances where they did not know which of the 8 business reasons properly reflected their grounds for needing to reject a request. For example, defence manufacturers working on highly confidential and sensitive information that requires security clearance cannot take their work off- site, so are unable to permit homeworking in certain roles. When refusing requests for home working, these companies have cited the “adverse impact on performance” business reason, but security concerns do not neatly fall within any of the existing business reasons. This difficulty highlights that there is a need to ensure that the business reasons cover all sectors and sub- sectors of business.
Carer’s Leave
Our Members appreciate the difficulties incurred by working carers and acknowledge the invaluable role these individuals play not only in the workplace but in their family situations and society in general. Again, Members support, in principle, the implementation of a statutory right for a carers to take time off work to provide care. This Employers Federation EF Consultation Response to Good Jobs Employment Rights Bill right would sit alongside existing rights for flexible working, emergency time off for
dependants as well as statutory annual leave entitlements.
Members seek reassurance that adequate guidance will be provided regarding the type of situations that it envisages carers leave to be taken for (distinct from the situations covering, for example, emergency time off for dependants leave) and if there are circumstances when it may be appropriate to seek evidence regarding entitlement and the care being provided.
Whilst we appreciate that the proposed right is currently unpaid, If it is to becomes paid leave, this must be a statutory payment and not be a cost to be borne by businesses. Members are opposed to any move towards employers having to bear the cost of it. We suspect providing paid leave maybe difficult particularly if carers leave is permitted to be taken in periods less than a day.
Additionally, employers ask that there is a requirement for the employee to provide sufficient notice (where possible) when seeking carers leave. The proposed right is not intended to duplicate the existing right of time off for dependants leave which covers emergency situations. It is therefore likely that carers leave will involve appointments /arrangements which are scheduled in advance or more routine. As such, it will not be unreasonable to ask employees to provide notice in these situations. In most cases we anticipate periods of a day or half day will be requested. On the Department’s proposal, this would provide very short notice for businesses of between 1-2 days to take the leave. Given that these are likely to be set appointments, we believe a period of 7 days is appropriate unless that is not reasonable to provide that notice in the circumstances. In circumstances where it is not reasonable to provide 7 day’s notice, then it should be at least double the length of time off being sought.
Neonatal Leave and Pay
Our Members are extremely supportive of the proposed right to Neonatal Leave and Pay for those individuals whose babies are placed in neonatal care following birth.
Employers understand the trauma that such situations can cause employees and the significant impact that it can have on family life as well as how an employee spends their maternity/paternity leave.
Employers are committed to ensuring that they do the right thing for their employees who need to exercise their right to neonatal leave and pay. Given the sensitive nature surrounding the entitlement of the right, and the emotional and vulnerable time in an employee’s life, employers require clear guidance as to how they can raise issues regarding evidence and notice of entitlement in a sympathetic and safe way. Employers are concerned that lack of clarity in this area may potentially lead to complaints of discrimination and may damage the employment relationship.
Protection from redundancy: Pregnancy and Family leave
Our Members are cognisant of the difficulties some employees in Northern Ireland have experienced as a result of taking maternity leave. Maternity leave is a precious time in a mother’s life to enable her to bond with her new baby as well as recover from pregnancy and birth. It is therefore vital that mothers can enjoy that period of leave without the fear and worry of it adversely affecting their employment or career opportunities.
Employers support protections that would support mothers returning to the workplace. However employers are concerned that extending the period of such protection has the potential to cause adverse industrial relationship issues where other employees believe they are being treated less favourably.
Employers have also raised concerns regarding the proposal to extend redundancy protection to employees who have availed of 6 weeks Share Parental leave. Employers believe this is a relatively short period of leave to attract such preferential treatment in a redundancy situation and believes this potentially could be open to abuse, particularly in collective redundancy situations. There is also the concern about how employer’s manage the potential competing rights that the additional protection will bring to those availing of Maternity leave, Paternity leave and Shared Parental leave.
Should the Department be steadfast with their proposal, then Members ask for detailed guidance on how to manage these issues.
Paternity Leave
Members in the main support the proposals in relation to statutory paternity leave. However they believe the current notice requirements are working well in practice and do not present any difficulties for employees exercising their right to take the leave. Members prefer that the notice requirements for maternity leave, paternity leave, shared parental leave etc are the same which makes it easier for businesses to manage in the workplace.
Other matters not included in Consultation
Whilst we understand that monitoring is not the responsibility of the Department of Economy, our Members has asked us to impress that they find the current legal requirements for monitoring to be outdated and not fit for purposes in Northern Ireland today. The Questions asked do not allow for responses that accurately reflect the composition of workplaces. In some instances, they force businesses to categorise a person as being perceived as one community or another when in reality they are a foreign national and not perceived as either.
As stated above businesses ask that all the TUPE changes introduced in GB to date are also brought into effect here.
Holiday pay is an issue that takes up a lot of time to calculate and the cost of getting it wrong can be very high. Businesses have asked this area to be explored in depth and the Department consider implementing the 2 year back stop.
Apprenticeship Levy is an issue that has vexed businesses UK wide and we understand it is being reformed by the Labour Government. We are unclear how that reform will impact Northern Ireland. Many businesses currently feel they are contributing significantly to the levy but are not fully benefiting from it. Reports indicate that Northern Ireland companies are “missing out” and some businesses have expressed frustration over the complexity of accessing the funds for training.
Reducing the collective consultation period from 90 to 45 days. It is currently 90- days in Northern Ireland, when employers plan to make 100 or more redundancies during which time dismissals cannot take effect. In GB, the period is 45 days and in ROI the period is 30 days. We have found that the 90-day period is excessive, and unnecessarily elongates the decision making when both sides recognise that consultation has been exhausted. This often leads to anxiety among employees, as they may be left in limbo about their job security for too long and hinders businesses moving forward to rebuild workplace relations following the departure of employees.
Conclusion
The is a monumental Consultation and the Minister has described the proposed Employment Rights Bill as landmark.
The Department is also working on the implementation of the Domestic Abuse Safe Leave provisions and the extension to the Statutory Parental Bereavement Leave and Pay to provide a Day 1 right to pay and extend the provisions to miscarriage.
In addition, the Executive Office has recently completed a call for evidence on a review of the discrimination laws so change could be forthcoming in that area.
The Department of the Communities has stated that the gender pay gap reporting rules will be brought into force in due course.
All these potential legal changes can create challenges for businesses, particularly small and medium-sized enterprises (SMEs). Undoubtedly businesses will have to invest in training and audits to ensure compliance with any new measures and laws.
For those laws that are bespoke for Northern Ireland we will not have the benefit of case law and rulings from GB to aid the interpretation.
In considering the way forward we urge the Department to keep regulations as clear and straightforward as possible. We recommend that clear guidelines and resources are also produced by the Department to aid in this process.
We also recommend allowing time for businesses to adjust to new regulations through phased implementation and clear signposting as to when changes are likely to occur this will help minimise disruption and provide a smoother transition. The Department should also consider offering training and resources to help businesses.
We welcome the opportunity to engage with the Department and/or the Committee for the Economy on these proposals and trust that you find our comments above constructive.
For further information, contact:
Michelle McGinley, Director of Legal & Policy
Tel: 02890 595050
Email: michelle@eefni.org
Legal Team
info@eefni.org
Website: www.employersfederation.org
30 September 2024