What the Good Jobs consultation could bring in Northern Ireland

We have already highlighted how some of the proposals look set to closely reflect changes due to be introduced in the rest of the UK – but also important differences that would see employment law in Northern Ireland and Britain further diverge.

In this article, we take a closer look at what any employment rights bill stemming from the Good Jobs consultation in Northern Ireland could contain, with reference to the four themes of the Department for the Economy’s consultation, to help employers understand what is planned and prepare an informed response to the consultation before it closes on 30 September 2024.

Terms of employment

In employment law terms, both in Northern Ireland the rest of the UK, employees enjoy the most legal rights and protections, followed by workers and then the self-employed.

Within the Good Jobs consultation, the Department for the Economy is seeking information as to the nature and extent of the challenges around employment status.

The previous UK government’s 2018 ‘Good Work Plan’ contained a long-term ambition to reform employment status classification to make it fairer and more transparent, but under its ‘new deal’ for working people, the current UK government favours creating a single, fully protected single status of worker – a consultation on this change is expected in the coming year. . Given the overlap with reserved matters such as tax that any proposals to amend employment status in Northern Ireland would bring, it seems unlikely that any proposals will be taken forward in Northern Ireland alone and the driver for change would likely come from Britain.

Beyond the topic of employment status, the Department is also consulting on options to address zero-hours working, which may extend to other forms of atypical working. It has not outlined a preferred approach, but views are requested on various suggestions – including a complete ban on zero hours working and the introduction of a right to request a predictable working pattern. The latter is in place in Ireland already.

Legislation already in place to deliver a new right to request a predictable working pattern in Britain was expected to come into force this month, but the UK government has now shelved it and has said that its planned Employment Rights Bill for Britain, expected to be introduced later this autumn, will go further and have measures to ban exploitative zero-hour contracts, ensure workers have a right to a contract that reflects hours regularly worked, and that they are given reasonable notice of shift changes and payment for cancelled or curtailed shifts.

It therefore seems likely that new measures around zero-hour working will be introduced in Northern Ireland and that they are likely to be influenced by the detail of the approach the UK government takes in its Employment Rights Bill for Britain.

Separate questions have been posed by the Department around whether to tackle fire and rehire practices and, if so, whether a statutory code of practice linked to existing claims or standalone statutory remedies would be suitable. In July, a statutory code came into force in Britain which does not create a freestanding right to enforce it but does allow tribunals to adjust claims by up to 25% if it is breached.

The UK government has committed with its planned Employment Rights Bill for Britain to end ‘fire and rehire’, by reforming the law and replacing the new statutory code. Again, those plans are likely to be highly influential on what measures the Department brings forward for Northern Ireland.

Other proposed measures are more clearly intended to align the law in Northern Ireland with existing positions in Britain and are very likely to proceed. These include the proposed introduction of personal liability as it relates to the collective redundancy government notification process, reforms to ‘section 1 statements’ for workers, and the introduction of key information documents for agency workers.

From April 2020, the right to a written statement became a “day one” right in Britain. It applies to workers as well as employees, and additional categories of information were added to the requirements at the time. Agencies were also required to provide a key information document to new workers.

In 2020, enhanced protection for agency workers was also provided for in Britain through the abolishment of the so-called “Swedish derogation”. That derogation allowed agency workers to exchange their right to be paid equally to permanent counterparts after 12 weeks in return for a contract guaranteeing pay between assignments. This was considered susceptible to exploitation and Northern Ireland is also now proposing to abolish it.

Pay and benefits

The proposals outlined in the Good Jobs consultation under this theme are largely designed to bring Northern Ireland into line with the position that applies already in the rest of the UK, and so are likely to be implemented.

The most notable change planned is the proposal to change the holiday pay reference period, where workers do not receive fixed pay, from 12 weeks to 52 weeks. This was implemented in the rest of the UK in April 2020, since when employers with both British and Northern Irish workforces have had to implement two different calculation methods. This proposal will represent a welcome simplification to payrolls operating across the UK.

There is also a proposal to replicate a British change implemented in April 2019 that requires employers to provide payslips to all workers, and show hours on payslips where the pay varies by the amount of time worked. Views are also requested around working time record keeping obligations, but there is no fixed proposal, suggesting that no or only minimal change will follow.

From 1 October 2024, new British legislation and a statutory code of practice will come into force to ensure tips go to workers in full. That new framework will prohibit deductions from tips and require a written policy on tip distribution. The Department is proposing to closely replicate this.

Views are also sought on a ‘right to disconnect’, which would allow workers to disengage with work and not be contacted by their employers outside normal working hours. The consultation paper refers to the fact that in Ireland a code of practice is already in effect around switching-off, and general views on this are invited. The UK government has pledged to introduce a new right to disconnect as part of its ‘new deal’ package and reports suggest that it will not set a “one size fits all” right in this regard but that rather workers and employers will be expected to work together on bespoke workplace policies to implement the right.

It remains to be seen whether only employers over a certain size will be required to recognise a right to disconnect and whether the new right is supported by an Acas code. Like in other areas, the reforms introduced in Britain in this area are likely to be followed with interest by the Department and influence the approach it takes with new legislation.

Voice and representation

The plans outlined under this theme in the consultation paper focus on the reform of industrial relations as well as some limited TUPE reform.

Industrial relations

The Department for the Economy has proposed to introduce a code of practice to establish an agreed set of principles and expected behaviours on which employer representatives and trade union officials can establish and build a productive working relationship. There is no equivalent code in place in Britain, though the Department’s proposals are reflective of a similar code in New Zealand.

With its consultation, the Department is seeking views on New Zealand’s rights of access for trade union officials to workplaces. New Zealand has comprehensive access rights, including a right to enter workplaces to promote membership and a right to request access to workplaces where there is no membership. The UK government has said that its planned Employment Rights Bill for Britain will contain access provisions to allow union officials to meet, represent, recruit and organise members, provided they give appropriate notice and comply with reasonable requests of the employer.

The UK government’s Bill is also expected to implement changes to simplify statutory recognition claims, with Labour’s ‘new deal’ plans explaining that reforms will address existing thresholds that are “presenting too high a hurdle in modern workplaces that are increasingly fragmented”. The detail is unknown, but the current threshold of a workplace needing 21 employees before statutory recognition can be sought may well be reduced, and the Department’s consultation also envisages change in this area too in Northern Ireland.

The Department’s consultation also replicates the UK government’s commitment to introduce e-balloting.

The Northern Irish consultation also seeks views on whether the period of notice provided to an employer of industrial action should be reduced from seven days to five days.

The UK government’s ‘new deal’ promises “new rights and protections for trade union reps to undertake their work, strengthening protections for trade union representatives against unfair dismissal and union members from intimidation, harassment, threats and blacklisting”. It remains to be seen how those promises are translated into legislation. The Department has not yet set out equivalent intentions for Northern Ireland, but its consultation asks for views on whether current protections for trade unions reps and those taking part in official industrial action are fit for purpose. The UK position is likely to be influential.

Broad views on the introduction of sectoral collective bargaining are also sought in the consultation, though no specific proposal has been advanced by the Department. This is a less developed position than the UK government, which is planning a fair pay agreement in the adult social care sector as well as further assessment of how and to what extent such agreements could benefit other sectors.

A section of the Good Jobs consultation also addresses reform of information and consultation of employees (ICE) mechanisms that do not involve trade unions.

The UK Labour government has not made provision for such reform in Britain under its ‘new deal’ package, but it does want to enable ICE agreements to be made when there is a minimum threshold of support at smaller establishments within the employer’s organisation. This would reform the existing position which requires thresholds to be met by assessing the whole of the employer's organisation. The Northern Irekabd consultation does propose replicating an April 2020 change made to the British position which reduced the threshold required for a request to set up ICE arrangements to 2% of employees, subject to a minimum of 15 employees.

TUPE

In Britain, the law was changed in 2014 to allow employers to inform and consult directly with their employees about employee transfers between undertakings if they had fewer than 10 employees. From 1 July 2024, this position was expanded to cover employers with fewer than 50 employees or employers of any size if they are transferring more than 10 employees. With its consultation, the Department is requesting views on this, and it seems likely the reforms introduced in Britain will be replicated in Northern Ireland. This is likely to benefit a number of employers in NI given the prevalence of SMEs.

Just before the UK election, the previous UK government consulted on clarifying that TUPE only applied to employees, and not the broader category of workers, and on whether the idea that employment could be split between two transferee employers should be ruled out by TUPE amendments. This was to provide certainty following case law which took the law towards TUPE applying to workers and split employment. It is not clear if the current UK government will respond to this consultation, but the Good Jobs consultation now seeks views on the same questions. It seems unlikely that Northern Ireland will not align with the position the new UK government adopts in respect of the rest of the UK.

A further open-ended question on whether any other changes to TUPE should be considered has been posed by the Department for the Economy in its consultation. Other than information and consultation requirements, TUPE legislation in Britain differs in several ways to the position in Northern Ireland and so employers may welcome greater alignment. For example, the following British provisions do not apply in Northern Ireland:

• collective redundancy processes may start before the transfer date;
• changes in the location of a workplace may be an economic, technical or organisational reason entailing a change in the workforce – this avoids an automatic unfair dismissal claim under TUPE;
• flexibility around changing terms and conditions;
• employee liability information to be delivered 28 days before the transfer date – instead of 14 days as in Northern Ireland.

Employers in Northern Ireland may hope that the consultation opens the possibility of closer alignment with the UK on these issues. However, it is possible that the British and Northern Irish TUPE positions actually become more divergent as the UK government’s “new deal” anticipates strengthening TUPE protection, albeit the detail of what is planned in this regard has still to emerge.

Work-life balance

Proposals falling under this theme are largely aimed at bringing the law in Northern Ireland into line with changes already implemented in the rest of the UK, including around flexible working and carers’ leave.

Flexible working

In April, changes were made to British flexible working legislation. The Department’s consultation paper outlines a clear intention for most of these changes to be replicated in Northern Ireland. Those changes include:

• removing the current 26-week qualifying period before a flexible working request can be made, thereby making this a “day one” right available to both new and existing employees;
• introducing a requirement for an employer to consult an employee making a flexible working request;
• allowing an employee to make two statutory requests in any 12-month period rather than one request;
• removing the requirement that the employee must explain what effect the change would have on the employer and how that might be dealt with.

The UK government’s planned Employment Rights Bill is expected to further reform British flexible working arrangements by making flexible working the default for all workers, with employers required to accommodate this as far as is reasonable. There are not plans contained in the Good Jobs consultation to suggest that this will be replicated in Northern Ireland. The Department for the Economy has also not indicated that it proposes to move away from the stricter statutory timeframe for considering requests in Northern Ireland.

Carers’ leave

In April, a right to one week’s unpaid carers’ leave was introduced in Britain. The Department for the Economy is proposing to replicate this but has also invited views as to whether a right to paid leave should also be introduced. The UK government’s ‘new deal’ also commits it to examining the introduction of paid carers’ leave and it will be interesting to see whether either or both jurisdictions commit to this.

New British legislation was also passed to create a “day one” right to 12 weeks’ neonatal pay and leave. Regulations are needed to bring the rights and obligations created by this legislation into force, although this is expected in April 2025. Plans to replicate this right in Northern Ireland are set out in the Department’s consultation.

The consultation paper also features proposals to replicate changes made in Britain in April that enhanced existing maternity-related redundancy protection. This gave women a preferential right to any suitable available vacancy while pregnant and for up to 18 months after the birth. There are new adoption leave and shared parental leave redundancy protections too. The UK government’s planned Employment Rights Bill is expected to go even further and strengthen protections for new mothers by making it unlawful to dismiss a woman who has had a baby for six months after her return to work. The Department for the Economy’s consultation paper does not contain proposals to align the position in Northern Ireland to this.

British paternity leave rules were also changed in April to allow fathers and partners to claim their entitlement in non-consecutive blocks at any point in the first year after the birth or adoption of their child. The Department for the Economy wants to replicate this but also make paternity leave a “day one” right in Northern Ireland. This would differ from the UK position where the employee needs to have been continuously employed for at least 26 weeks before they can start qualifying for paternity leave rights. The Department for the Economy is also seeking views on whether paternity leave should be extended to four weeks, which is something the UK government has also committed to considering.