Can NI employers rely on England and Wales case law?

"I do not have experience of practising employment law in Northern Ireland, only in England and Wales. If I start to work in Northern Ireland, will I be relying on NI or England and Wales case law?"

Keywords: Jurisdiction; Practice and Procedure

Seamus: Well, thankfully, there are lots of resources available to anybody that may be new to employment law or may be coming back into this jurisdiction. Largely, there isn't a massive difference between what goes on in Northern Ireland and outside in the UK. In terms of this question more specifically the authority of our courts and tribunal services here, the basic position is we are our own jurisdiction here.

Our industrial tribunal and fair employment tribunal arrives at its own decisions and gives its own case law in terms of that, same as our court of appeal does. But certainly, from experience, very much England is a bigger place, England and Wales and certainly there would be a reliance upon the case law that's available there. I'm using it really as precedence to provide to our courts and tribunals.

Scott: It's so persuasive that they're still mentioning Burchell and BHS from 40 years ago.

Seamus: Forty years ago, yes. So that's exactly the word, that it is persuasive. They're not tied to it, but certainly it is persuasive. There are differences out there in terms of what our court of appeal has issued and what they have done in England or maybe that we've touched on the issue first of all and that we're maybe the guiding precedent for it. But certainly, they're not buying that, but they do take cognisance of it. They do find it persuasive.

Scott: What I have certainly found, Seamus, is that tribunals do not like anyone going into a Northern Ireland tribunal and quoting English legislation, talking about the Employment Rights Act as opposed to Employment Rights Order.

Seamus: Yes, certainly the legislation doesn't apply here. Anyone that's looking at settlement agreements, compromise agreements, termination agreements, whatever jurisdiction you're in and whatever you call them, if you're an employee in Northern Ireland and this is where your contract is based, then your compromise agreement should be based on NI law and not on any English legislation or anything like that. But certainly, the case law, there can be some overlap in relation to it.

Scott: There can be. There are also several differences in legislation as it applies. Trades Union law, for instance, very different now.

Seamus: Absolutely. Even the fact that we have a Fair Employment Tribunal... in England, they just have the Employment Tribunal. Obviously in England as well, they have the employment appeal tribunal (EAT), which we don't have here. As a practitioner, you would look to the EAT decisions and we've mentioned them already here today. You look to them for support and guidance in terms of what your issue is.

Note: Legal-Island, alongside the Labour Relations Agency and Ciara Fulton, have put together a useful Comparative Employment Law: Northern Ireland, Ireland and Great Britain table to highlight the similarities and differences between the jurisdictions.