In Northern Ireland, an important consultation is underway on a range of employment rights to be introduced in a new Employment Rights Bill. The bill is designed to align Northern Ireland’s employment law framework more closely with that of Great Britain and is likely to impact significantly in a number of key areas affecting businesses with a presence in Northern Ireland. We’ll speak to a Belfast-based lawyer about the changes and how employers can prepare for them.
This is the ‘Good Jobs’ consultation which opened on 1 July and will run until 30 September. The Department for the Economy says the proposed changes ‘will help to improve terms of employment, pay and benefits, voice and representation and promote a healthy work-life balance.’
The wide-ranging consultation is based around 4 themes which are: (a) terms of employment; (b) pay and benefits; (c) voice and representation; and (d) work-life balance. Within those 4 sections the changes most likely to impact employers, in our view, are those relating to zero hours contracts, holiday pay, the right to disconnect, trade union activity and TUPE. So let’s consider some of those. Craig Patterson is an employment lawyer based in our Belfast office and earlier he joined me by phone to discuss the consultation. First the proposed changes to zero hours contracts:
Craig Patterson: “So the proposed changes, the proposed legislation on zero hours contracts, is not a surprising one. There was previously a members’ bill that had been put forward in the last assembly that touched upon a number of these areas. What is recognized in the consultation is that there is no definite right answer in terms of how to deal with zero hours contracts and some of the perceived potential for exploitation of workers in that. There are a number of industries that rely heavily on zero hours workers and the potential implication of a complete ban on zero hours contracts would be significant in areas such as hospitality. So whilst a complete ban is proposed, there are discussions as to whether there should be exemptions to any sort of ban The inclusion of a ban on exclusivity clauses seems like a likely area that will go ahead, and offering the right for employee employees and workers on zero hours contracts to get more stable hours of work etcetera, are other another areas. It is an area that we do expect to proceed in some form of legislation following consultation, but the extent to which that bans zero hours contracts is to be seen.”
Joe Glavina: “Given what you say, Craig, I guess it would be a good idea for employers to perhaps conduct an audit of some kind to understand where, and to what extent, they rely on zero hours workers?”
Craig Patterson: “Yes, absolutely. I think employers would be wise to do an audit of their zero hours worker population, see how heavily they rely on zero hours in their business, look at ways at which they may respond to a potential ban. Is that to encourage more over time from permanent members of staff? Look at the use of agency workers, for example, to deal with peaks in production or services at particular times a year. But at this stage, it is definitely worth employers looking at their zero hours population and seeing how they may be impacted by any changes.”
Joe Glavina: “Turning to holiday pay, Craig, the Department is seeking views on extending the holiday pay reference period for workers with variable hours from 12 weeks to 52 weeks which would bring NI in line with the corresponding reference period used in GB. I guess that would be a welcome change?”
Craig Patterson: “Yes, absolutely. I think a number of employers, particularly those with operations in in GB and NI, would welcome the reference period being increased in Northern Ireland to bring it in line with GB. The current system where we've got a 52-week reference period in GB and a 12-week reference period in NI causes difficulties from a practicality point for a number of employers in terms of payroll and how they deal with that and, in truth, the 12-week reference period doesn't sit easy with the Supreme Court's decision in Agnew which noted that a 52-week reference period is likely to be more appropriate. So, certainly a change which would be welcome in Northern Ireland.”
Joe Glavina: “Moving on to the right to disconnect, the Department is seeking views on whether current legislation in NI is effective enough to promote a healthy work-life balance. Thoughts on that.”
Craig Patterson: “Yes, so this is another area that is a hot topic in employment law, not just in GB and NI but also but across Europe and we have seen a number of European jurisdictions take different approaches to the right to disconnect. It seems likely that in Great Britain there may be a code of practice similar to what there is in the Republic of Ireland, without a specific legal right to disconnect and it seems likely, therefore, that NI may follow that same approach, a code of practice as opposed to a legal right seems to be the likely direction of travel. But it's certainly one that employers should consider now whether that's introducing a policy to deal with what the expectations are for employees outside of work, but certainly it would seem likely that at the very least we'll have a code of practice dealing with this.”
Joe Glavina: “Turning to trade unions next. The proposal is geared to increasing the role of trade unions by making access into the workplace easier and lowering the threshold for trade unions to seek formal recognition from 21 to 10 employees. This is a big one isn’t it?”
Craig Patterson: “It is a big one. Trade unions is certainly a big one in Northern Ireland and it's a focus point for the consultation. There's very much a view held that increasing trade union representation, and trade union engagement, particularly in traditionally low pay sectors, is something that NI should move towards and these changes would certainly make it easier for trade unions to access workplaces and also then seek recognition and, in turn, then make it easier to call for industrial action, etcetera. So, potential for significant changes in trade unions for employers in Northern Ireland.”
Joe Glavina: “Next onto TUPE, Craig. The proposals are designed to bring NI into line with changes which have already happened in GB which would help make transfers quicker and easier to manage. So that would be good thing, clearly.”
Craig Patterson: “Yes, so the changes that the consultation focuses on around micro business exemptions, which have been in place in Great Britain since 2014, certainly would be welcome in Northern Ireland. It makes it much easier for businesses who have TUPE transfers to engage directly with employees and, in certain cases, not have to look to appoint representatives for small numbers. So certainly it could make it quicker and more straightforward. Some of the other changes that didn't come into place in Northern Ireland that have in Great Britain which aren't called out specifically in this consultation are ones which employers who are responding to the consultation may wish to raise. So for example, in Great Britain a change in workplace is specifically referred to as an ETO reason whereas in Northern Ireland it's not and that means in Northern Ireland that's a potentially automatic unfair dismissal. So things like that would be worth employers maybe pushing forward for more changes in TUPE than what's called out in the consultation paper.”
Joe Glavina: “So overall, Craig, what’s the advice you’re giving to clients?”
Craig Patterson: “Our key advice to clients now is engage in this consultation. It closes on the 30th of September. It is significant. It's the widest ranging consultation that has been in employment law in Northern Ireland for at least 10 years and the changes that are proposed, or the areas that they're seeking views on, impact all employers in Northern Ireland. Therefore, we would recommend that employers review the consultation, identify areas that impact them in particular, or that they have strong views about, and engage and provide representations to the consultation before it closes on the 30th of September.”
Joe Glavina: “Finally, Craig, what is the timeframe for these changes?”
Craig Patterson: “Some of those changes, particularly around the introduction of carers leave, antenatal care leave, and some of the amendments to flexible working and paternity leave, may come along around quite quickly, so towards the end of 2024, the beginning of 2025. Some of the other changes that are more significant such as those around trade union access, for example, may take much longer to come into effect if legislation is to be brought forward. But certainly those around family leave seem to be the ones that would come in quickest.”
The ‘Good Jobs’ consultation remains open until 5pm on 30 September so you do still have time to respond if you want to. Page 9 of the consultation document gives details on how to do that. We’ve put a link to that in the transcript of this programme for you.
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