UK employment law divergence possible with ‘significant’ Northern Ireland consultation

Craig Patterson of Pinsent Masons said the wide-ranging consultation on employment law reform in Northern Ireland being overseen by the Department for the Economy is the most significant consultation on employment law in the country for years and could dramatically alter the employment law landscape if the changes trailed are implemented.

Patterson said that although some proposals would bring Northern Ireland in line with the rest of the UK, employers should also expect potential divergence – including in areas such as sick pay rights, rules around unfair dismissal and protections against sexual harassment – if proposed changes proceed in both Northern Ireland and Great Britain.

“The Northern Ireland Executive’s consultation is separate to the exercise that is being carried out by the UK Labour government to implement its ’new deal’ for working people,” Patterson said. “The King’s Speech in July outlined the UK government’s plans for an Employment Rights Bill (ERB) to be introduced in the first 100 days of the new UK parliament as well as an Equality (Race and Disability) Bill. These items of legislation will not implement the ‘new deal’ in its entirety and further consultation, legislation and non-statutory measures are likely to follow.”

“Employment legislation proposed by the UK government will not apply to Northern Ireland because employment law is devolved to the Northern Ireland Assembly,” he said.

Under the Executive’s proposals, Northern Ireland would have its own ERB. Patterson said the proposals outlined in this regard bear close resemblance to many of UK Labour’s ‘new deal’ ambitions and feature “flagship Labour topics”, such as restricting ‘fire and rehire’, tackling zero-hour contracts, removing restrictions on trade unions, and introducing a ‘right to disconnect’, but that inspiration has also been drawn from Ireland and New Zealand.

In many areas, the consultation simply proposes to bring Northern Ireland employment law in line with reforms already delivered in Britain in recent years, such as changes to written particulars of employment, the introduction of carer’s leave and the abolition of the so-called ‘Swedish derogation’ concerning equal pay rights for agency workers. Some of the reforms in the areas of flexible working and TUPE are also subject to consultation in Northern Ireland, but not all. A further cluster of proposals go beyond what the new UK government has trailed for Britain via the King’s Speech, but Patterson also highlighted how significant elements of Labour’s ‘new deal’ package are not replicated in the Northern Irish proposals.

“Under the proposed ERB for Britain, Labour intends to make parental leave, sick pay, and protection from unfair dismissal available from day one on the job for all workers, subject to probationary periods to assess new hires,” Patterson said. “The Executive’s consultation does not consider this and so this could be an area where there is significant further differentiation between worker rights in Britain and Northern Ireland in future.”

“The UK government also plans a draft Equality (Race and Disability) Bill, which is to include provisions on equal pay and pay reporting in Britain. Gender pay gap reporting legislation has remained stalled in Northern Ireland since 2016 and with no timeframe for when it might finally be brought into force, while the position regard pay gap reporting looks likely to evolve further in Britain,” he said.

Other ‘new deal’ ambitions which are not mirrored in the Northern Irish proposals include: strengthening of whistleblowing protections, sexual harassment protections, and extensions to time limits to bring employment claims.

Patterson said employers can feed into the Northern Irish proposals until 30 September and encouraged employers to do so.