In response to the rising cost of living, the Living Wage Foundation announced on 29 May 2022 that it will be bringing forward its annual review of the rates. Instead of announcing the rates in November 2022 which they usually do, it will now do so in September 2022.

The Real Living Wage is the only UK wage rate based on the cost of living.

There is no obligation on Organisations to pay the real living wage, but many employers have chosen to sign up to it. The current rate is currently £9.90 in the UK.  Once the new rate is announced employers will be encouraged to pay staff the rate as soon as possible. More information can be obtained from https://www.livingwage.org.uk/news/living-wage-foundation-responds-cost-living-crisis-%C2%A0

The calculation of Holiday Pay has been a live issue for several years and more so since the Northern Ireland Court of Appeal (NICA) handed down its judgment in Chief Constable of the Police Service of Northern Ireland and another v Agnew and others [2019] NICA 32 on 17 June 2019.

From 2011 onwards, a range of cases in both the European and UK courts overhauled the previously settled position of how holiday pay was calculated, with employers now required to include a variety of additional components where employees did not have ‘normal’ remuneration. The UK case of Bear Scotland [2014] also established the principle that underpaid holiday pay cannot be claimed as the last in a series of deductions where more than three months has elapsed between deductions, thus limiting the potential for years of backdated holiday pay claims.

However, in 2019 the NICA  in Agnew found that a 3-month gap between payments does not necessarily break a chain of deductions and as Northern Ireland does not have the 2 years back stop in place in Great Britain (which limits wages claims to a maximum of 2 years) this ruling potentially opened the flood gates for years of underpaid holiday pay, potentially going back to 1996 when EC Working Time Directive was first implemented.

The Court of Appeal also upheld the concept, which first originated in the judgement of the Industrial Tribunal,  of the ‘composite whole, it being the theory that each day of holiday consists of fraction or percentage of:

• % Working Time Directive leave (20 days);
• % Working Time Regulations leave (8 days) and;
• % Any additional contractual leave (x Days)

 Agnew was appealed to the UK Supreme Court (UKSC) where it was initially listed for Hearing in June 2021. The case, however, was subsequently removed from the list at the request of the parties, to allow for settlement discussions to take place, facilitated by retired NICA judge, Sir Paul Girvan QC.

Whilst mediation meetings were held in March 2022, the Police Federation (who are supporting the employees claims) announced that the PSNI did not receive required authorisation from Department of Finance to approve settlement figures.

So, Agnew has now returned to the UKSC where it is relisted for Hearing on 14 and 15 December 2022.

There are thousands of holiday pay cases stayed in Northern Ireland Industrial Tribunals pending the outcome of the Supreme Court decision. The UKSC Judgement is also pending in another holiday pay case of Harper Trust v Brazel which they heard in November 2021.That case deals with the issue of how to calculate holiday pay correctly for atypical working patterns such as term time workers. The effect of all this is that the focus will remain on holiday pay for some time yet.

If your Organisation has not yet done so, you should complete an audit of how you pay holiday to ensure the Organisation is compliant as incorrect calculations could prove costly.

The Northern Ireland Department of Health has changed the guidance on Coronavirus (COVID-19): self-isolating and close contacts. This follows changes to the rules on testing that came into force on 22 April 2022.

In summary, the changes are to:

• the definition of a close contact;
• cessation of wider community contact tracing; and
• the rules on self- isolation. Specifically there is now no difference in the guidance for those who are vaccinated and those who are unvaccinated.

We have set out these changes below and how they will affect businesses.

Self-isolation for those who test positive for Covid (no change)

If employees test positive, they should self-isolate for up to 10 days from date they took Lateral Flow Device (LFD) test or the date symptoms started (whichever is sooner). That date is considered to be Day Zero.

As before, they can potentially end self-isolation early from Day 6, if they have 2 consecutive negative tests 24 hours apart. This applies to both vaccinated and unvaccinated persons as there is now no difference in their treatment.

Close contacts of someone with Covid

The guidance now defines close contacts as those that live in same household as the person who has tested positive for Covid.

Routine contact tracing in wider community has stopped. The emphasis is now on the person who tests positive identifying their close contacts (whether household or workplace) rather than individuals being notified by the Public Health Agency. These close contacts are not required to self-isolate but to be alert to any signs that they are developing Covid.

Close contacts will not be advised to do LFD unless they develop symptoms.

Advice to individuals who are close contacts (whether household or in the workplace) includes:

• Be alert for Covid symptoms;
• Avoid close contact with vulnerable persons;
• If develop Covid symptoms, do LFD and isolate if test;
• Do not visit hospitals / other health & care settings.

Organisations should again note that if the person is identified as a close contact, there is no longer any distinction in the rules that apply to the vaccinated or unvaccinated.

We are excited to return to our in-person conference and to reconnect with everyone.

The legal team and our guest speakers will be covering the most topical issues and important developments for employers and HR professionals.

This will be a great event and we look forward to seeing you there.

Mr Noel Kelly was appointed as the President of the Industrial Tribunals and Fair Employment Tribunal for Northern Ireland on 4 April 2022, taking over from Mrs Eileen McBride who retired.

Members will be aware that, due to Covid 19, the Tribunals Office has been working on a hybrid basis and at reduced capacity since March 2020. This has had a significant impact on the progress of cases.

On 6 May 2022, Mr Kelly issued his first Presidential Guidance aimed at increasing the disposal of business as rapidly (in line with risk assessments) as possible.

The key points are:

Killymeal House re-opens for in-person Hearings

• On 25 April 2022, Killymeal House re-opened for in-person hearings. Adelaide House will no longer be used by the Tribunal.
• Six rooms are now in use for Hearings and 3 rooms will be used to allow larger groups to attend via video conferencing technology.

Expedited Hearings

The Guidance allows for Hearings to be expedited so that an earlier Hearing date can be provided in certain circumstances. Reasons where this may be granted include:

• previous postponements and consequent delay;
• the physical or mental health of a party or witness;
• financial difficulty of a party;
• statutory appeals against prohibition notices, where for example a business has been or could be forced to close pending determination of the appeal by the tribunal; and
• (v) the need to secure the availability of a relevant witness where that availability is limited. The decision whether or not to expedite a hearing is a judicial one

Public Attendance

•  In keeping with the principles of open justice, provision has also been made for members of the public to attend Hearings. The weekly hearing schedule is published on the Tribunal’s website to facilitate this.
• This will be welcome by those persons that wish to attend a Hearing as part of their development or in preparation for a case that they are involved in.

Case Management Preliminary Hearings

• Case Management Preliminary Hearings will continue to be conducted by WebEx or telephone, unless there is a requirement for reasonable adjustments/special arrangements or where there are complex issues which require them to be conducted in person.

As a result of Mr Kelly’s new guidelines, we should begin to see cases progressing more quickly through the Tribunal, which will be welcome news for Members.

You can access the full document at: Presidential Guidance 6 May 2022

If any Member has any queries, please do not hesitate to contact the Legal Team.

The Issues

Brexit was undoubtedly a political vote about migration and started a trend of thinking in terms of  “us” and “them.” Political rhetoric from politicians such as President Trump who wants to build a wall to keep the Mexicans out has increased this type of “us” and “them” thinking.  Tragic terrorist acts and threats have also resulted in an increase in hate crimes and hate speech.  All this has led to a false impression that some level of racial resentment/intolerance is acceptable.  For employers, this creates difficulties in maintaining neutrality in the workplace and taking reasonable steps to ensure that employees are not discriminated on racial grounds.  This article explores the position in Northern Ireland and looks at the legal perspective, before considering what can employers can do to promote good race relations.

Northern Ireland

Northern Ireland has only 0.1% of the total UK migrant workforce.  The 2011 census (figures of which are out of date but are the most up to date) stated that there were 81,453 people born outside the UK or the Irish Republic.  This represented 4.5% of the total Northern Ireland population of 1.8 million; of that 1.8% of the population believed that they belong to a minority ethnic group.

Migrant workers primarily live in Belfast, Dungannon, Craigavon, Newry and Mourne areas and predominantly come from Eastern European countries such as Slovakia, Lithuania and Poland.  Approximately 5% of the Northern Ireland workforce is comprised of migrant workers.  Statistics show that migrant workers tend to fill posts that are hard to fill (such as cleaning and agriculture jobs) and tend to be lower skilled and lower paid.  For employers in those sectors and geographical areas the impact of Brexit remains a real concern.

So, does Northern Ireland have any race issues in the workplace?  According to the number of Tribunal Claims you may be led to think that there is not.  Since 2015 there have been 184 race discrimination cases lodged, 79 of which were in 2016.  This number is similar to the number of religious discrimination claims in that year.  However, these figures may misrepresent the real situation and that there is evidence that migrant workers are less likely to complain particularly about low level abuse.  Other factors, such as language barriers and lack of knowledge of how to lodge a claim, may be behind these numbers.

The Law

There are some differences between the race discrimination laws in Northern. Ireland and GB that are not explored in this article.  However unlawful race discrimination includes the familiar concepts of direct and indirect discrimination, harassment and victimisation.  For example it would be direct discrimination if a black employee complained about a manager’s conduct and a senior manager then commented erroneously that it was a race discrimination complaint.  As direct race discrimination cannot be justified motive is irrelevant.

Indirect discrimination could occur where a Polish person with little written or spoken English applied to be a cleaner, could do the job but was not shortlisted due to their lack of English.  Whilst indirect discrimination can be justified it is unlikely that in this case the requirement for written or spoken English could be shown to be a proportionate means of achieving a legitimate aim.

Examples of racial harassment would include racist jokes (French girl subject to ‘oh la la’ jokes) banter and insults (‘Go back home you foreigner’) or mimicking accents or the way a person speaks.

It would be victimisation if an employee raised a race discrimination complaint then applied for a more senior position but was not selected on grounds that the interviewer consciously or unconsciously took into account the fact the employee had raised a complaint.

Employer Liability

Employers are liable for anything their employee does in the course of their employment.  The definition of ‘in the course of the employment’ has been extended by case law.  Essentially, if there is a link back to the workplace then the employer may be liable regardless of whether the act was done with their knowledge or approval.  Importantly the offending employee can also be personally liable.  Compensation is joint and severable against any named Respondent and is also unlimited.  The employer does have a defence, if it took all reasonable steps to prevent the employee from doing that (discriminatory) act or from doing anything of that description.

Reasonable Steps Defence

The reasonable steps defence goes some way towards the employer maintaining good race relations in the workplace.  In order to succeed with the defence, employers must take reasonable steps before any discrimination has occurred and thereafter deal with the matter effectively once it has occurred.

To succeed with the defence, as a minimum, employers must not only have equal opportunities and anti-harassment and bullying policies, but also have:

1. Put the policies into practice.
2. Reviewed the policies as appropriate.
3. Made all employees aware of the content of the policies and their implications.
4. Trained managers/supervisors/employees in equal opportunities and harassment issues.
5. Taken steps to deal effectively with complaints, including taking appropriate disciplinary action.

However, having policies and training is insufficient if it can be shown that managers turned a blind eye to racial harassment and banter in the workplace.

Maintaining good race relations

But good race relations is more than defending legal claims and there are sound business reasons for your business to fully support equal opportunities.  There is evidence to show that businesses who fully support equal opportunities have a more productive workforce, lower absentee figures, higher employee retention levels and higher staff morale.  This will all contribute to a workplace that is more productive.

Diversity and inclusiveness are currently key concepts in Human Resources.  It is recognised that a workforce can be diverse but not inclusive.  In order to be inclusive employees need to have a voice, feel valued and connected.  Whilst training is a vital step to creating a positive culture it is rarely enough on its own.  To be successful it needs to be led from the top down and senior leaders need to drive and support a culture that embraces differences.

Steps for your Organisation

Your organisation should consider its workforce composition and assess if any concerns have been raised through the Company’s processes e.g. exit interviews or appraisals.  Training should be refreshed in areas where it is required or where it is outdated.  Leaders should clearly demonstrate that they endorse equal opportunities.  Importantly, managers need to know how to respond to concerns raised both formally and informally as they tend to be the first recourse for workers.  In appropriate circumstances a good manager may be able to nip matters in the bud at an early stage to prevent issues escalating.  Your organisation should consider if it could successfully rely on the reasonable steps defence.  Being proactive to promote a more diverse and inclusive workplace, by gaining a better understanding of the cultures that exist in your organisation, will assist improving workplace relationships and is likely to contribute to increased productivity.

Impact of Brexit

Undoubtedly Brexit will have an effect on race discrimination.  Migration remains a central issue and it is unknown whether people will be able to move freely across the borders. This may lead to increased racial tension.  There is also some concern that there may be a roll back on equality laws.  This is complicated by the fact that equality law is devolved in Northern Ireland and we may see further areas of divergence in our laws from those in GB.  However it is clear from the Draft Programme for Government that equality and good relations are seen to be essential to ensuring a prosperous and thriving Northern Ireland

The Association is continuing to work closely with Fergus McReynolds, Director of EU Affairs for EEF GB and EEF NI, as the UK prepares to exit the European Union.  Please find below a summary of the most recent events and some of EEF’s commentary.

Summary of Article 50 week

The letter from Prime Minister May fired the starting gun on two years of negotiations to agree a divorce deal which will set out the terms under which the UK leaves the EU and – we hope – a new partnership based on trade and close cooperation with our European partners. This marks a shift with geo political and generational implications, for both citizens and businesses.

While the mechanism is up and running this will in the end be a political deal between the nations’ leaders – and the politics is of course potentially toxic.

The actual time for negotiating may in reality be much shorter than two years. Any deal will need to be on the table for consideration by January 2019, leaving just over 12 months for the real negotiation, once you’ve taken into account elections in France and Germany and ratification by the European and UK parliaments, that’s all assuming those elections don’t throw up any big surprises or upsets.

So what does this mean for manufacturing?

Well the first message from the manufacturing sector is clear, no deal is not an option. This has been reiterated by ourselves and by our European partners in CEEMET, the EU wide manufacturing group, setting out the need for a Brexit deal that reduces the risk of economic shocks.

As we have set out in our Brexit Briefing on Trade with the EU, no deal would mean a significant disruption to trade between manufacturers in the EU and the UK, unlike a typical free trade-type negotiation where walking away simply means the continuation of the status quo with neither party losing out, this is not the case between the EU and the UK. Should the UK walk away with no preferential access to the EU or international markets in place, on day one of Brexit our sector would immediately find itself at a loss.

So what do we want to see from the negotiations?

EEF’s primary call is to agree a reasonable deal which allows for seamless trade ensuring that we avoid unnecessary tariff burdens and reduce the possibility of technical barriers to trade from administrative blocks to divergence in regulation. In order to deliver this we are firmly of the belief that a significant period of transition will be needed to deliver an orderly and smooth exit from the EU.

In addition, manufacturers will also need to employ and deploy people as freely as possible after Brexit, with employers in manufacturing companies needing ongoing access to workers with higher level and other technical skills from the EU and worldwide to maintain their ability to invest, grow and train in Britain. The EEF recommendations for a new model on migration are set out in our second Brexit Briefing.

Finally the government has published its white paper on the ‘Great Repeal Bill’ which seeks to address the regulatory uncertainty of Brexit. Our first primary call is for the adoption of the current legislative environment to ensure little or no disruption in regulation for businesses and continued trade with the EU. It is our view that in time, once the final deal on our future relationship has been agreed and allowed to bed in that we should work with Government to review our legislation to ensure it is fit for purpose. However we will still need to find a mechanism for UK and EU regulatory cooperation to allow for ongoing smooth trading relationships.

Where next?
This is just the start. Negotiations will probably be very public with all sides fighting a PR war to meet the perceived requirements of different audiences. One thing is clear however. The stakes are very high for industry in the UK and across the continent.  It will be important that decision makers are held to account, to ensure they are putting the needs of manufacturers at front and centre.

On Tuesday 14 March 2017 the Association attended a local panel discussion chaired by Matthew Taylor, Chief Executive of the Royal Society of Arts, who has been selected by the Prime Minister to lead an Independent Review of Employment Practices in the Modern Economy.

The scope of the Review is to consider how employment practices need to change to keep pace with modern business models.  This is a topic that we will be discussing in further detail at the EEF’s Annual Conference on Wednesday, 7 June 2017.

The Review proposes to address 6 key themes:

1. Security, pay and rights

• To what extent do emerging business practices put pressure on the trade-off between flexible labour and benefits such as higher pay or greater work availability, so that workers lose out on all dimensions?

• To what extent does the growth in non-standard forms of employment undermine the reach of policies like the National Living Wage, maternity and paternity rights, pensions auto-enrolment, sick pay, and holiday pay?

2. Progression and training

• How can we facilitate and encourage professional development within the modern economy to the benefit of both employers and employees?

3. The balance of rights and responsibilities

• Do current definitions of employment status need to be updated to reflect new forms of working created by emerging business models, such as on-demand platforms?

4. Representation

• Could we learn lessons from alternative forms of representation around the world?

5. Opportunities for under-represented groups

• How can we harness modern employment to create opportunities for groups currently underrepresented in the labour market (the elderly, those with disabilities or caring responsibilities)?

6. New business models

• How can government – nationally or locally – support a diverse ecology of business models enhancing the choices available to investors, consumers and workers?

At the discussion in Belfast Mr Taylor described his work as covering 3 key themes:

1. Exploitation: How to tackle it, why it occurs and what we can do about it;

2. Obtaining clarity on the law, especially around tax and employment status, for example whether a person is an employee, worker or self-employed. Mr Taylor noted that whilst UK tax laws extend to Northern Ireland, this is not the case with employment law which is a devolved matter for the NI Assembly.  It will therefore be a matter for the Assembly to decide whether it wishes to act on the recommendations in his final report;

3. Considering incentives, how they drive forms of behaviour and what can be done to align incentives to proper behaviour.

The intention is to pursue these 3 central themes without damaging job creation and flexibility whilst also encouraging the development of quality work.

The Belfast panel of 4 was made of up of representatives from: The Citizens Advice Bureau; Uber (accompanied by 2 Uber drivers working in a gig economy model); and the Irish Congress of Trade Union, together with a Chair of Academic Freelancers.

Whilst it was disappointing that the discussion focused on the traditional forms of employee, worker and self-employed and did not explore the huge range of atypical working arrangements that we see in modern businesses, nonetheless it became clear through the discussion that there are a number of complex issues to explore:

• Statistics provided reveal that 15% of the workforce in Northern Ireland are self-employed with approximately 52% of those reporting that they feel very insecure in their work;
• Other commentators suggested that whilst 75% of the self-employed are happy with their self-employment status, 25% would prefer to be doing something else;
• Many like the flexibility, and advantages of direct pay, that comes with being self-employed, and in return are happy to accept the lessening of rights such as holiday pay and National Minimum Wage. It is difficult to see how it will be possible to increase rights without sacrificing some of this flexibility.  Additionally, as the economy in Northern Ireland is predominantly SME based, it may mean a different solution is appropriate here;
• Without doubt one of the biggest challenges in Northern Ireland will be skills shortages and how to ensure we have sufficient appropriately trained persons to take up the rolling range of jobs available in our economy; this coupled with Brexit may make the outlook for the economy more uncertain.

The discussion ended with Mr Taylor emphasising that he wants to encourage a shift in thinking about how we work.  His parting words were that if we want to work, whether in a modern or traditional fashion, then jobs must be fair and decent and have the scope to enable people to develop and be fulfilled in their work.  This certainly is an ideal that we would all like to see in the workplace but we must wait to see how he proposes to achieve that.  Indeed, in Northern Ireland we will have to wait to see if the Assembly, if one emerges from the latest election, puts this on their agenda as an important issue for the Department of the Economy.

Karen Moore will be speaking about this topic at our Annual Conference.  Anyone wishing to attend should contact John Gibson at john@eefni.org

Topics will include:

• Brexit: What the future holds
• Gender Pay Gap Reporting
• New Employer Guidelines on Pregnancy and Maternity at Work
• The Apprenticeship Levy
• Data Protection and the New Obligations
• The Gig Economy and Modern Way of Working
• Maintaining Good Race Relations Following Brexit
• Key Employment Changes and Tribunal Decisions Affecting Employment Relations

Date:           Wednesday 7 June 2017 9.45 am – 4.30 pm
Venue:        Titanic Belfast, 1 Olympic Way, Queens Road, Belfast
Cost:            Members:                £295.00 + VAT (£354.00)
                      Non-Members:      £350.00 + VAT (£420.00)