Key Differences Between NI & ROI Employment LawPosted in : Back to Basics on 24 October 2019 Issues covered:
In the latest of our video series with A&L Goodbody 'Back to Basics' Associates in the Employment & Incentives team Jill Gracey and Laura Feely discuss the key differences between Northern Ireland and the Republic of Ireland in terms of employment law.
Laura: So myself and Jill today are going to discuss some of the key differences in employment law across NI and ROI.
Role of WRC
So in ROI, the Workplace Relations Commission, or the WRC, is the body in which all employment-related claims and industrial-related claims are heard. And employees have six months to initiate complaints before the WRC, and this is six months from the alleged breach or from the date of termination in an unfair dismissal claim. And this can be extended to 12 months if there is reasonable cause for the delay. And a decision of an adjudication officer in the WRC can be appealed within 42 days to the Labour Court.
In respect of unfair dismissals claims in ROI, an employee must have one year's continuous service to bring a claim. However, there are exceptions to this. For example, if an employee is dismissed on a discrimination grant or, for example, making a protected disclosure.
And the maximum compensation that an employee can be awarded by the WRC is two years' remuneration or reinstatement or re-engagement in the company.
Role of Employment Tribunals NI
Jill: Then in Northern Ireland, we have a tribunal system. There are two different types of tribunals that sit in Belfast. The first is the Industrial Tribunal, and the Industrial Tribunal hears most employment-related claims. And then the second tribunal is the Fair Employment Tribunal, and the Fair Employment Tribunal addresses complaints of alleged discrimination on the grounds of religious belief or political opinion.
Most employment claims in Northern Ireland must be brought within three months. In a dismissal scenario, it is within three months from the effective date of termination, or if it is a discrimination claim, it is within three months from the date in which the alleged discriminatory act occurred. And then decisions that are reached by the tribunal in Northern Ireland may be appealed to the NI Court of Appeal.
Time Limits for Claims
One similarity between Northern Ireland and the Republic of Ireland is the general requirement for employees to have one year of continuous service if they choose to bring an unfair dismissal claim. However, there are certain exceptions to that, for example, if the dismissal has been taken on a discriminatory ground or if the employee has made a protected disclosure.
Working Time Issues
And then another concept where there are some differences is the concept of working time, and working time . . . both NI and ROI have implemented the provisions of the EU Working Time Directive. However, there are some notable differences. One of those differences is that in Northern Ireland, and across the UK generally, employees may opt out of the protection to have a maximum weekly working hours of 48 hours per week. However, while employees can opt out of that protection, they can opt back in very easily, simply giving notice to their employer.
Laura: So in Ireland, there is no provision for employees to opt out of the 48-hour working week. Generally, we have an average 48-hour working week that employees cannot exceed. And this is provided for under the Organisation of Working Time Act.
And it's the average that's important, and this is usually calculated over a four-month period. But there are exceptions for certain employees who are working in particular industries.
And the Organisation of Working Time Act also provides for certain entitlements to employees, such as rest breaks, annual leave, and public holidays. And in ROI, employees have a statutory entitlement to four working weeks and nine public holidays on top of this.
Jill: Whereas in Northern Ireland, employees have a right to four weeks of annual leave, which comes from the Working Time Directive from EU. And then on top of that, there is a right to 8 additional days of public or bank holidays. Although in Northern Ireland, generally, most employers recognise 10 public holidays, which is unlike the principal in GB where eight are usually recognised, and the additional two days in Northern Ireland are St. Patrick's Day and the 12th of July holiday.
So another concept that is different between the two jurisdictions is the concept of sick pay. In Northern Ireland, and across the UK generally, there is a statutory sick pay scheme, or an SSP scheme, and that entitles eligible employees to up to 28 weeks of statutory sick pay in cases of incapacity.
And the levels of SSP payments change from time to time. And they are subject to certain notification and eligibility requirements, and SSP will be paid by the employer to the employee.
Laura: So in Ireland, there is no statutory obligation on employers to pay employees sick pay. However, an employee may have a contractual right to receive sick pay. It's also very common for employers to have a sick pay policy scheme in Ireland and they could pay employees on sick leave on a discretionary basis. Employees could also apply for illness benefit to the Department of Employment Affairs and Social Protection. And this will be subject to certain requirements.
So in addition, there is also a very similar legislation in NI and ROI in relation to prohibiting discrimination in the workplace. And there are a number of similar discrimination grounds, for example, gender, race, disability, age, family status, civil and martial status, membership of the Traveller community, and so on.
Jill: And in Northern Ireland, perhaps the most notable difference is on the protected characteristic of religion. That has expanded in Northern Ireland to include religious belief and political opinion. And that is, ultimately, a result of the social and historical context behind our equalities legislation here in Northern Ireland, which is called the Fair Employment and Treatment Order, or FETO in short. And under FETO, there is also an obligation on employers to monitor the community background and the gender breakdown of their workforce and of job applicants. And failure by an employer to comply with that obligation is a criminal offence.
Laura: So in ROI, there is no mandatory reporting of community background or gender workforce breakdown. However, we will shortly be introducing the gender pay gap reporting, and that's expected to come into force in the coming months in ROI.
Jill: And in Northern Ireland, we do have draft regulations in place which deal with gender pay gap reporting. However, that has not been implemented yet and we don't have a confirmed date as to when those will be implemented. It will largely depend on when devolved power-sharing resumes at Stormont. But across the water in GB, gender pay gap reporting is certainly something that has been implemented and employers are required to comply with.
Laura: So in ROI, to bring a discrimination claim to the WRC, you must do so within six months of the last act of the discrimination. And again, this can be extended to 12 months if there's reasonable cause for the delay.
And it's important to note that employees in Ireland do not need the one year's continuous service as they do in an unfair dismissal claim if they are dismissed or if they're bringing a claim in relation to any of these discrimination grounds.
Jill: And that concept is similar and Northern Ireland as well, in that employees do not require one year of continuous service to bring a claim. They can bring a claim from the first day of their employment, or even before that if they feel that they haven't been offered a job and the application process had some sort of discriminatory element to it.
And employees in Northern Ireland or job applicants will have three months from the date on which the alleged discriminatory act occurred to bring their claim to the tribunal. Or if they are seeking to rely on a series of alleged discriminatory acts, then the timeframe will start to run from the date on which the last alleged discriminatory act in that series occurred.
Laura: So another significant difference between NI and ROI is employment injunctions. So applications for injunctions before the Irish civil courts by employees are a frequent feature of Irish employment law. And generally, in ROI, you would see these types of injunctions brought by senior executives in a company, but more commonly, we're seeing them brought at more junior levels.
An employee could bring an injunction to seek to restrain a disciplinary process or a dismissal in certain circumstances. And these could include, for example, where an employer has failed to afford the employee fair procedures in conducting a disciplinary process. Fair procedures is a very important concept in Irish employment law because the right to fair procedures is enshrined in the Irish Constitution.
So injunctions in the Irish courts, the courts will apply a certain test and then they could grant an injunction, which is really just an interim relief, which will be pending the full trial of the issues. And that can take several months and also be very costly for employers.
So, therefore, the injunction is a very powerful tool used by Irish employees against their employers. And therefore, a prudent employer would have to take detailed legal advice before they commence a process to terminate someone's employment.
Jill: Employment injunctions in Northern Ireland are pretty uncommon. Where they do arise sometimes or where they are threatened quite often is when an employee has left their employment and there is a concern that they are in breach of restrictive covenants or post-termination restrictions that they have entered into. And the former employer may want to seek some sort of relief to prevent them from acting in a competitive capacity post-termination of their employment.
It would be very rare to have an employment injunction in Northern Ireland being brought by an employee seeking to restrain or prevent a disciplinary action or a dismissal occurring. While it could technically happen within our current judicial and procedural framework, it is very uncommon, and that is perhaps because we don't have the same codified constitution that applies in the Republic of Ireland.
Also, our employment injunctions progress through the High Court, so the costs are significant, and that could be another reason to deter employees from bringing that sort of an action.
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