Weekly Review of Developments 14/9/2018

“The reincarnation of an ancient evil” might seem a tad strong in relation to zero hour contracts but we can think of a few other people/things this week to which it might apply. One or two might even appear in this week’s review…

CONTENTS

1. Annual Review of Employment Law 2018 - Early Bird Ends
2. Case Law Reviews
3. Huge Growth in Data Protection Values
4. Brexit and Immigration Update
5. There's Engagement and then there's Engagement
6. Employer Skills Survey 2017: Northern Ireland Toolkit
7. The Pension Protection Fund (Pensionable Service) and Occupational Pension Schemes (Investment and Disclosure) (Amendment and Modification) Regulations (Northern Ireland) 2018
8. Just in Case You Missed It...
9. HR Developments
10. Employment News in the Media
11. GB Developments
12. Health and Safety Developments
13. South of the Border
14. Friends of Legal-Island
15. Free Webinars This Month
16. Weekend Weather and Thought-Provoking Video

Case law essentials this week: A very interesting case this week about religious discrimination at work. Can employees be dismissed for getting divorced? The case considers the EU Equal Treatment Directive and whether a Catholic doctor's dismissal for remarrying constitutes discrimination on grounds of religion.

Remember: Our case law reviews are now held in our case law section on our fully-searchable employment law hub:
https://www.legal-island.com/employment-law-hub/case-law-search-page/

Highlights this week: Our early bird discount on the Annual Reviews of Employment Law 2018 end today! Register by 5pm today (14th September) and you'll save up to £70 per seat:
Crowne Plaza, Shaw's Bridge, Belfast – Tuesday 20th November 2018

New bereavement leave rights for parents are to be introduced in GB from 2020; the Labour Party has announced they would extend workers' rights and "restore the balance of power in the workplace" in GB, according to shadow chancellor John McDonnell; one in seven older workers believe age has adversely impacted their job prospects; and poor mental health affects half of all employees, according to a survey of 44,000 people.

Would you be interested in training in intelligence gathering in the digital era, including social media intelligence training? See 'Friends of Legal Island' for details.

And don’t forget to register for our free webinar 'Employment Law at 11' on Friday 5th October 2018 (11:00am - 11:45am).

Join Scott Alexander and Seamus McGranaghan and up to 500 participants as they discuss your employment law queries live.

Register Now: https://register.gotowebinar.com/register/8732381114084020739

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1.  Early Bird Discount on Annual Reviews Ends at 5pm Today!

312 of your peers have already booked to attend the Annual Reviews of Employment Law 2018 conferences, held in association with sponsors NI Jobs and Sureskills. Register by 5pm today (14th September) and you'll save up to £70 per seat.

This year we have 13 different sessions, and 15 speakers discussing everything you need to know – it’s a comprehensive and practical update on all the major changes and developments in employment laws affecting NI workplaces.

Plus, the comprehensive folder of notes (323 pages last year) we provide to every attendee serves as an excellent reference tool when you’re back in the office.

After attending, you will better be able to:

• Minimise your risk of litigation
• Understand how the relevant new cases from Northern Ireland, GB and Europe impact your workplace
• Update your HR policies with useful templates for key areas in your organisation - these will be sent to you directly via email
• Refer to all important legislative and case law developments relevant to your workplace with an extensive folder of notes
• Prepare your HR department for the year ahead

This year, the Annual Review of Employment Law conferences take place as follows:

[SOLD OUT] Titanic Belfast – Thursday 8th November 2018

Crowne Plaza, Shaw's Bridge, Belfast – Tuesday 20th November 2018 [over 130 of your peers already registered] 

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2. Case Law Reviews

IR v JQ [2018] Case C-68/17

Keywords: Preliminary Ruling; Discrimination; Religious Grounds; Dismissal; Remarriage Following Divorce; EU Equal Treatment Framework Directive

In this case the Federal Labour Court in Germany asked the European Court of Justice (ECJ) for a preliminary ruling on whether a Catholic doctor’s dismissal from a managerial position in a Catholic hospital, for remarrying after divorce, constituted unlawful discrimination on grounds of religion. The hospital argued his remarriage amounted to a breach of his duty to act in good faith and a failure to show loyalty to the hospital’s religious ethos, namely, that marriage is sacred and indissoluble.

JQ was a Catholic doctor and Head of Internal Medicine at a hospital in Germany. The hospital was managed by IR, a limited company under the supervision of the Archbishop of Cologne. The company dismissed JQ when it learned of his remarriage following divorce claiming he had infringed his duty of loyalty under his contract of employment.

JQ’s contract of employment referenced the Basic Regulations on employment relationships in the service of the Church (GrO 1993). Under Article 4 of the GrO 1993, headed ‘Duty of Loyalty’, Catholic employees are expected to recognise and observe the principles of Catholic doctrinal and moral teaching. The regulations state that entering into a marriage that is invalid according to the Church’s teachings and its legal system shall be regarded as serious and may justify dismissal.

JQ contended that his dismissal was a breach of the principle of equal treatment as, under GrO 1993, the remarriage of a manager of Protestant faith or of no faith would not have had the same or any consequences in terms of the employment relationship.

The ECJ held that although Article 4(2) of the EU Equal Treatment Framework Directive (No.2000/78) grants organisations with a religious ethos an exemption from prohibition of discrimination in cases of ‘genuine, legitimate and justified occupational requirements’, the Court held that a requirement for a Catholic doctor in a managerial position to respect the sanctity of marriage did not appear to fall into that bracket. It did not appear to be genuine requirement of that occupational activity.

“Adherence to that notion of marriage does not appear to be necessary for the promotion of IR’s ethos, bearing in mind the occupational activities carried out by JQ … Therefore, it does not appear to be a genuine requirement of that occupational activity within the meaning of the Directive.”

The ECJ maintained it would be for the national court to decide in a manner consistent with the Directive. If this was not possible, EU law should take precedence over national law, and the national court must uphold the prohibition of all discrimination on grounds of religion or belief.
http://curia.europa.eu/juris/document/document.jsf?text=&docid=205521&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=457409

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3. Huge Growth in Data Protection Values

The global GDPR services market will be worth nearly $2.7bn by 2023, up from more than $900m in 2018, Research and Markets has predicted. The main driver of the growth will be the enforcement of GDPR regulations in the EU from May 2018, the report found.

Additionally, the generation of enormous amounts of data; heightened awareness for data security and privacy; and the demand for data processing transparency for improved security service delivery among organisations are also significant factors propelling the growth. More from innovationenterprise.com:
https://channels.theinnovationenterprise.com/articles/gdpr-services-market-to-be-worth-2-7bn-by-2023?

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4. Brexit and Immigration Update

Mobile Roaming Charges Post-Brexit

Free data roaming will continue even if the UK leaves the EU without a deal, the Brexit secretary has promised. Dominic Raab said two mobile operators had agreed and if others did not follow the government would force them by law.

Extra charges for people using their phones in another EU country were scrapped in June 2017. But the EU regulation banning them will not automatically be part of UK law after Brexit on 29 March next year.

In theory this means UK mobile operators, if they want to, could reintroduce the charges that could make it expensive to use a mobile phone in another EU country. Mr Raab told BBC Radio 4's Today programme two mobile operators, Vodafone and Three, had publicly agreed not to bring them back for British citizens. More from the BBC:
https://www.bbc.co.uk/news/uk-politics-45501007

However, an article on the BBC's website entitled 'Brexit papers: What no deal could mean' adds some caveats to the above assertion:
https://www.bbc.co.uk/news/uk-politics-45511297

And a big worry for many on this island could be another article that states that a no-deal Brexit could mean that motorists who travel across the Irish border would require an International Driving Permit (IDP).
https://www.bbc.co.uk/news/uk-northern-ireland-45512992

Post-Brexit Migration Concerns

Plans for a scheme to hire overseas seasonal agricultural workers have been welcomed, but employers and experts say the government still needs to do more to address post-Brexit migration concerns.

The Home Office and the Department for Environment, Food and Rural Affairs jointly announced this week that the government would run a two-year pilot scheme to let UK farmers recruit up to 2,500 non-EU fruit and vegetable pickers each year for six months at a time.

The UK previously had a seasonal agricultural workers scheme, which allowed UK farmers to hire workers from Bulgaria and Romania for up to six months. However, this was scrapped in 2013 to coincide with the date transitional labour market controls were lifted on the two countries, which had joined the EU six years earlier.

The new pilot, which will run from spring 2019 until December 2020, has been welcomed by business groups and lawyers. However, they stressed the government must not rest on its laurels and work towards clarifying broader post-Brexit migration policies. More from the CIPD:
https://www.peoplemanagement.co.uk/news/articles/seasonal-workers-scheme-government-called-on-go-further

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5. There's Engagement and then there's Engagement

Organisations are at risk of having their initiatives stall because they oversimplify the concept of employee engagement, a new report has warned.

The research from the Institute for Employment Studies (IES) discovered that organisations are routinely conflating the concept of employees’ engagement with their jobs with the concept of engagement with their employer.

The report – Bridging the Gap: An Evidence-based Approach to Employee Engagement – found that this failure to understand that employees could be highly engaged with their job but not their company, and vice versa, meant HR strategies designed to boost engagement were not having the desired effect. More from People Management:
https://www.peoplemanagement.co.uk/news/articles/hr-initiatives-risk-failure-businesses-oversimplify-engagement-report?

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6. Employer Skills Survey 2017: Northern Ireland Toolkit

Survey findings for Northern Ireland in the form of a slide pack and data tables at national and regional levels can be access via the link below. Findings for other areas of the UK are available in the wider collection.
https://www.gov.uk/government/publications/employer-skills-survey-2017-northern-ireland-toolkit 

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7. The Pension Protection Fund (Pensionable Service) and Occupational Pension Schemes (Investment and Disclosure) (Amendment and Modification) Regulations (Northern Ireland) 2018

These Regulations make amendments to existing Regulations governing compensation payable from the Pension Protection Fund, and the investment principles and disclosure requirements for occupational pension schemes. They also amend the definition of “pensionable service” in the Compensation Regulations and in the Pension Protection Fund (Multi-employer Schemes) (Modification) Regulations (Northern Ireland) 2005 (“the Multi-employer Regulations”). The Regulations additionally impose requirements on occupational pension schemes in relation to the statement of investment principles required under Article 35 of the Pensions (Northern Ireland) Order 1995 (“the 1995 Order”) and the disclosure of information in relation to the statement of investment principles. 
http://www.legislation.gov.uk/nisr/2018/165/contents/made

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8. Just in Case You Missed It...

A Guide to Secondments

For an employee it’s the opportunity work in a different office or environment, a different company, different city or even a different country. For employers it can be a favour to an existing client or a means of attracting a prospective client. On the face of it, there are a lot of perks for both the employer and the employee, however, there are several practical issues that all parties need to consider before entering any secondment arrangement.

In this month’s ‘Essential Guide to Employment Contracts’ article, Kiera Lee, Director and Head of the Employment Department at Mills Selig, outlines the practical considerations of a secondment, including selection, documenting the arrangement and agreeing who the employer is.
https://www.legal-island.com/articles/uk/features/essential-guide-to-employment-contracts/2018/sept/a-guide-to-secondments/

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9. HR Developments

One in Seven Older Workers Believe Age has Impacted their Job Prospects

Employers have been urged to act on ‘disappointing’ figures as candidates hide age in applications to avoid bias. As many as one in seven older workers thinks their age has cost them a job, a new survey from Business In The Community (BITC) and the Centre for Ageing Better UK has revealed.

The Becoming an Age Friendly employer report included a YouGov poll of more than 1,100 employees over the age of 50, which found one in seven (14 per cent) believed they had been turned down for a job due to their age.

In addition, almost one in five (18 per cent) older workers had hidden or considered hiding their age in job applications, with Claire McCartney, diversity and inclusion adviser at the CIPD, describing the results as “extremely disappointing”.

Almost one in three workers in the UK are aged 50 and over, with Mercer’s Workforce Monitor forecasting one million more over-50s will enter the workforce between 2018 and 2025.

However, almost half (46 per cent) of BITC survey respondents said they thought their age would be a disadvantage in applying for a job, and one in four (27 per cent) had been put off applying because the roles sounded as though they were aimed at younger workers.

In order to drive organisations towards more age-friendly cultures, the Centre for Ageing Better and BITC outlined five action points for employers, including a comprehensive flexible working provision, returner or re-entry plans for older workers, and an age-positive culture led by HR. More from People Management:
https://www.peoplemanagement.co.uk/news/articles/one-in-seven-older-workers-think-age-cost-job

The Value of Workplace Mentoring

A recent American Society for Training and Development study found that 71% of Fortune 500 companies have some type of corporate mentorship programme and that 75% of their executives credit their mentors with helping them reach their current position.

The rise of such schemes in today’s hyper-competitive economy suggests organisations believe it can help drive revenue and reduce costs. No longer an after-thought or “add-on” to corporate strategy, Joanne McAuley, Partner at Clarendon Executive, explores some of the increasingly recognised benefits of a structured workplace mentoring programme. No matter how simple or complex the programme, Joanne looks at the issues to be considered when implementing such an initiative.
https://www.legal-island.com/authors/ni2/joanne-mcauley/

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10. Employment News in the Media

A woman who was mocked for having a west Belfast accent and harassed for being female has won damages from an industrial tribunal. More from the Belfast Telegraph:
https://www.belfasttelegraph.co.uk/sunday-life/belfast-pub-employee-wins-payout-after-being-mocked-over-accent-37296000.html

UK wages have risen faster than expected. Excluding bonuses, wages grew by 2.9%, according to figures from the Office for National Statistics, well above the inflation rate. Earnings have now outstripped inflation for four months.  Unemployment continued to fall, dropping by 55,000 to 1.36 million, with the jobless rate remaining at 4%, its lowest level for over 40 years. More from the BBC:
https://www.bbc.co.uk/news/business-45481485

Labour have announced they would extend workers' rights and "restore the balance of power in the workplace", according to shadow chancellor John McDonnell. In his speech to the Trades Union Congress in Manchester he will promise more rights for people working in the so-called gig economy emphasising that a "new workplace environment" will boost productivity. Under a future Labour government, he will say workers in the gig economy could be given similar rights to those in permanent work, including eligibility for sick pay, maternity pay and similar benefits. His other proposals include allowing collective bargaining across different sectors of the economy and introducing employee ownership funds - under which staff at larger companies would be given shares in order to give them a stake in the profits and management of firms. More from the BBC:
https://www.bbc.co.uk/news/uk-politics-45479544

Poor mental health affects half of all employees, according to a survey of 44,000 people carried out by the mental health charity Mind. Only half of those who had experienced problems with stress, anxiety or low mood had talked to their employer about it. Fear, shame and job insecurity are some of the reasons people may choose to hide their worries. Mind says around 300,000 people lose their job each year due to a mental health problem. More from the BBC:
https://www.bbc.co.uk/news/health-45470517

The permanent health secretary made "substantive breaches" of the code overseeing ministerial public appointments when selecting board members for NI Fire and Rescue Service.  That was the finding of an investigation by the Commissioner for Public Appointments Judena Leslie.
She found a "lack of rationale or justification" for the appointments. More from the BBC:
https://www.bbc.co.uk/news/uk-northern-ireland-45503821

Big businesses, including Citibank, Deloitte and PwC, have put pressure on Theresa May, the prime minister, to legalise gay marriage in Northern Ireland, saying that diversity “is essential to create a vibrant and competitive economy. The statement, timed to coincide with the new parliamentary session at Westminster, was co-ordinated by the Rainbow Project in Northern Ireland, an LGBT advocacy group. More from Slugger O'Toole:
https://sluggerotoole.com/2018/09/11/big-businesss-demand-for-same-sex-marriage-must-set-a-precedent-for-more-challenges-to-our-embarrassingly-out-of-touch-politicians/

Leigh Day has confirmed it is now bringing Equal Pay claims against all of the ‘big four’ supermarkets after launching a claim against Morrisons. Leigh Day is seeking compensation for women in stores who believe they are paid less than men in the distribution centres for equal work.  The firm has lodged claims with the conciliation service ACAS while awaiting a response from Morrisons CEO David Potts, who they have written to on behalf of the first group of clients requesting Pay and Gender information for workers. More from London Loves Business:
https://londonlovesbusiness.com/morrisons-facing-equal-pay-claim-worth-over-1bn/

A tanker driver who accidentally spilled fuel over a forecourt has been awarded almost £23,000, along with his job back, by an employment tribunal. East London employment tribunal heard Mr D Nolan started employment with XPO Bulk UK in August 2010 as a tanker driver delivering fuel to petrol and filling stations across the UK. Employment judge Tobin ruled that Nolan was unfairly dismissed by his former employer and ordered he be reinstated to his previous role, as per Nolan’s request. The tribunal also awarded him £22,805.18 in loss of earnings, loss of pensions and expenses while looking for alternative employment. More from People Management:
https://www.peoplemanagement.co.uk/news/articles/tanker-driver-spilled-fuel-wins-job-back

A quarter of young women would be reluctant to report sexual harassment at work for fear of losing their jobs, a report revealed today. The Young Women’s Trust’s survey of 4,000 people aged between 18 and 30 also found 15 per cent of young women had been sexually harassed at work and not reported it – equating to 800,000 people across the UK. Just 8 per cent of women who experienced sexual harassment said they had reported the incident. Along with fears about being left jobless, one in five worried they would be offered fewer hours if they reported it. More from People Management:
https://www.peoplemanagement.co.uk/news/articles/quarter-young-women-fear-lose-job-reported-sexual-harassment 

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11. GB Developments

Employment law is a devolved power in Northern Ireland. The items in this section apply throughout GB only (Scotland and England & Wales) unless we specify they apply to NI.

Parents Who Lose a Child Entitled to Bereavement Leave

A new workplace right to leave for bereaved parents has been given the royal stamp of approval this week. Employed parents who lose a child under 18 will receive 2 weeks’ leave under the Act, which is expected to come into force in GB in 2020.

The first law of its kind in the UK will support those affected by the tragedy of childhood mortality and is expected to come into force in 2020. The new Parental Bereavement Leave and Pay Act will give all employed parents a day-one right to 2 weeks’ leave if they lose a child under the age of 18, or suffer a stillbirth from 24 weeks of pregnancy. Employed parents will also be able to claim pay for this period, subject to meeting eligibility criteria. More from gov.uk:
https://www.gov.uk/government/news/uk-first-parents-who-lose-a-child-entitled-to-bereavement-leave

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12. Health and Safety Developments

Employers and Self-employed Make Sure You are Aware of What is Reportable under RIDDOR

Reporting accidents and ill-health at work is a legal requirement.  The information enables the enforcing authority to identify where and how risks arise and whether they need to be investigated.  It allows the enforcing authority to target their work and provide advice about how to avoid work-related deaths, injuries, ill-health and accidental loss. Find out more here:
https://www.hseni.gov.uk/articles/accident-reporting

Dangerous Substances: Info sheets on Legislation and Substitution

As part of the 2018-2019 Healthy Workplaces Campaign , EU-OSHA has published two infosheets, each available in several languages.

‘Legislative framework on dangerous substances in workplaces’  offers a clear, practical summary of the relevant EU law in this area.

‘Substitution of dangerous substances in the workplace’  sets out information about removing the risks posed by certain dangerous substances altogether. This is often the best possible solution. For more information see the European Agency for Safety and Health at Work website:
https://osha.europa.eu/en/highlights/dangerous-substances-infosheets-legislation-and-substitution?pk_campaign=OSHmail%2009%202018

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13. South of the Border

This section is brought to you by Ciara Fulton, Partner at Jones Cassidy Brett. Ciara is dual-qualified and practices law throughout the island of Ireland. Contact Ciara on cfulton@jcbsolicitors.co.uk

Employment Law Comparative Table: Northern Ireland, Ireland and Great Britain

It is that time of year again, in the run-up to our Annual Review of Employment Law conferences, that we update our comparative employment law table, which sets out recent employment law developments between the three employment law jurisdictions of Ireland, Northern Ireland and Great Britain.

We have seen a number of changes in the last year or so, mainly in the first and third of these jurisdictions, thanks partly to the hiatus at the Stormont Assembly.

For readers with interests in the Republic of Ireland, there have been many developments in relation to equality laws in particular (parental rights, retirement, gender pay gap reporting and more) but there have also been changes or proposals regarding zero hour contracts and a-typical wording, whistleblowing, Codes of Practice, National Minimum Wage rates and more.

For readers with interests in GB, there have been developments in relation to compensation rates and whistleblowing (as there have been in NI), gender pay gap reporting, working time, National Minimum Wage rates and more.

As mentioned, there have been fewer developments in NI. However, there have been some (such as compensation and NMW rates) and the gap between employment laws in NI & GB continues to grow - it is now very dangerous for NI-based practitioners to rely on GB-based case law reviews, for example. Some laws simply do not apply on a UK-wide basis. On the other hand, of course (pending Brexit at least) some of the developments in relation to EU-derived laws are being applied by employment tribunals in NI, as they are in the GB tribunal and court system.
The comparative table reflects the position at 20 August 2018 and previous versions of the table should be discarded:
https://www.legal-island.com/articles/uk/features/comparative-employment-law/comparative-employment-law-northern-ireland-ireland-and-great-britain/

Podcasts and Transcripts

The table has been updated by Mark McAllister of the Labour Relations Agency, Ciara Fulton from Jones Cassidy Brett solicitors, and Scott Alexander from Legal-Island. In addition, Mark, Ciara and Scott have recorded a series of podcasts on major areas of difference in comparative employment laws between the three jurisdictions. Those podcasts and their transcripts will be released over the coming weeks. The podcasts go into more detail that can be done in the table and also cover some of the historical reasons for the differences between the jurisdictions.

Mark and Ciara will both be speaking at the NI Annual Reviews of Employment Law this November:
https://www.legal-island.com/events/

Scott will be introducing all of our reviews, including our three ROI Annual Reviews of Employment Law in November:
https://www.legal-island.ie/events/

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14. Friends of Legal-Island

Open Source Intelligence Course with the University of Ulster

A website you browse, a YouTube video you watch, a blog or social media post you read. This is all publicly available data referred to as Open Source Intelligence or OSINT.

This university accredited OSINT course has been designed by academics and subject matter experts in cyber security, counter-terrorism and intelligence. The course provides training in intelligence gathering in the digital era, including social media intelligence training using our market leading software developed in Silicon Valley. The course also equips students with the necessary skills to protect their own cyber footprint. This is the first of four courses that make up Chenega Professional Qualifications (CPQ).

For more information:
http://www.chenegaeurope.com/blog/posts/2018/january/osint-course-launches-online-with-ulster-university/ 

Say Hello to Iris, Executive Recruitment Director at CO3

With a growing demand for the CO3 Executive Recruitment Service they welcome a new member to the team. In this article CO3 ask Iris Pendergast about her new role as Executive Recruitment Director:
https://www.co3.bz/blog/say-hello-iris-our-new-member-team

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15. Free Webinars This Month

Employment Law at 11

Friday 5th October 2018 (11:00am - 11:45am)

Join Scott Alexander and Seamus McGranaghan and up to 500 participants as they discuss your employment law queries live in our new series, “Employment Law at 11”.

Tell your HR colleagues and register individually or get your HR team around the computer whilst and use the webinars as monthly group learning opportunities. Ask any questions (on employment law) and hear the answers live or catch up later when we upload both a recording and transcript of the discussion.

Remember – send questions in live during the webinars or drop a line in advance to scott@legal-island.com Anonymity assured.

Register Now: https://register.gotowebinar.com/register/8732381114084020739

Check out previous discussions:
https://www.legal-island.com/resources/any-questions-webinars/

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16. Weekend Weather and Thought-Provoking Video

A blustery day on Friday with cloud and outbreaks of rain in the morning. There will be a better chance of some brighter spells developing in the afternoon. Saturday will start off dry with some early brightness, although it is likely to become cloudier with outbreaks of rain developing later in the day. There will be some sunny spells on Sunday but also a few showers. Maximum daytime temperatures of 15-16°C.

Go to the BBCNI for local weather information 

This week's thought-provoking video is inspirational and quite a few of our readers will have seen one of the presenters in person. When faced with life's toughest circumstances, how should we respond: as an optimist, a realist or something else? In an unforgettable talk, explorer Mark Pollock and human rights lawyer Simone George explore the tension between acceptance and hope in times of grief -- and share the ground breaking work they're undertaking to cure paralysis.
https://www.ted.com/talks/mark_pollock_and_simone_george_a_love_letter_to_realism_in_a_time_of_grief 

And don't forget the A&L Goodbody 'Back to Basics' series of videos on the Legal-Island website if you want a quick check of NI employment rights. As well as a short video from the team, there's a transcript for reference purposes.
https://www.legal-island.com/regular-features/back-to-basics-video/

Enjoy the weekend.