Weekly Review of Developments 17/9/2021
Posted in : Weekly Review of Developments on 17 September 2021
Legal Island
Legal Island
They say the early bird catches the worm – book before 5pm today to get your place at this year's Annual Review of Employment Law at our early bird rate!
This week's top stories:
- Case law essentials this week: ambiguous contractual terms and the importance of clarity and note-taking when following HR procedures
- CIPD Calls For Mandatory Ethnicity Pay Gap Reporting By 2023
- Recent study suggests long Covid may be less common than previously thought
- Child Safeguarding Expert Wins Damages from NHS Gender Identity Clinic
- Refusal to Allow Four Day Week Was Discrimination
- A host of top law firms have been recognised for their efforts to become more ‘family-friendly
And here's this week's contents list in full...
- Your Annual Employment Law Update - Early Bird Offer Ends 5pm TODAY
- Case Law Reviews
- Featured Annual Review Session of the Week: Brexit and the Irish Protocol: The Impact on Employment Rights
- CIPD Calls For Mandatory Ethnicity Pay Gap Reporting By 2023
- Physical Proof of Status Should be Offered to EU Citizens: Joint Letter from Devolved Governments Calls for Additional Safeguard
- Parental Bereavement: Proposed New Law 'Does Not Go Far Enough'
- Coronavirus Employment -related Updates
- Data Protection Update
- Equality Update
- Legislative Update
- Just in Case You Missed It...
- Employment News in the Media
- GB Developments
- South of the Border
- Free Webinars This Month
- Weekend Weather and Thought-Provoking Video
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1. Your Annual Employment Law Update - Early Bird Offer Ends 5pm TODAY
2021 has been another challenging year for HR professionals throughout Northern Ireland.
We have the fall-out from the Covid pandemic and its resultant impact on work, workplaces and the workforce. And now we have to deal with competing interests between employers who want people to return to work for a variety of reasons and many employees who wish to work from home or on a hybrid basis.
On top of all that, there have been some important employment law developments this year, for example, important case law decisions on the gig economy; Brexit and the Irish Protocol; a widening gulf between NI and GB employment laws; and much more. How do you keep up to date? Join us…
Legal Island's flagship Annual Review of Employment Law 2021 conference, with our expert speakers, detailed notes, templates and precedents will cover all of the important developments that HR professionals in Northern Ireland need to know and understand.
It’s LIVE online on Wednesday 10 & Thursday 11 November 2021.
Join hundreds of your HR peers in learning from 35 speakers across 19 sessions including:
- Review of the Year (Part 1 and Part 2) with Mark McAllister, Director of Employment Relations Services, LRA
- Brexit and the Irish Protocol: The Impact on Employment Rights with Ciara Fulton, Partner, Lewis Silkin (NI) L.L.P
- The Legal Aspects of Hybrid Working and How to Minimise Employer’s Liability with Gareth Walls, Partner, A&L Goodbody
- Understanding Long Covid: An Employer’s Response with Stuart Nottingham, Director, Sun Rehabilitation
- Contractors v Employees Gig Economy and Worker Status with Adrienne Brock, Managing Partner & Head of Employment, Elliott Duffy Garrett
- Northern Ireland Case Law Review and Key Next Steps with Jason Elliott BL
- Long Term Absence and the Law with Seamus McGranaghan, Director, O’Reilly Stewart Solicitors
Plus 11 other sessions including 4 roundtable discussions; live Q&A where you can put your questions to the speakers; and much more
“Excellent event and having it online was actually much better and more interactive than usual for me as I was able to direct message and have my questions answered. The digital learning pack will be invaluable! It was like 2 days of HR Therapy! Fabulous event!” Noeleen Farnan, Director, Business Primis
Register now to grab our Early Bird Rate:
https://www.legal-island.com/event/annual-review-of-employment-law-2021/
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2. Case Law Reviews
Amdocs Systems Group Ltd v Langton [2021] UKEAT/0093/20/AT
Issues Covered: Contractual Benefits; Interpretation
The claimant started employment with Cramer Systems Ltd in 2003. His offer letter outlined a summary of benefits which included income protection payments when there was long-term sickness as well as the terms and conditions of his contract. The detail of the income protection was that it would begin after 13 weeks of sickness and would be paid at 75% of annual salary which also took into account any state benefits being received. Additionally, there was an ‘escalator’ of 5% per annum after the first year of sickness. The basis of this was that Cramer Systems Ltd had established an insurance plan that covered both the income protection payments as well as life insurance.
In 2009 the claimant was diagnosed with a long-term illness and was off work. He started to receive the payments in November 2009. The case arose after his employment was transferred to the respondent in 2015 (from Cramer Systems Ltd). The claimant discovered that he was not receiving the escalator at this point. When this was raised, he was informed by the respondent that it had been removed from the company’s insurance cover in 2008. This led the claimant to bring a claim for unlawful deduction from wages.
At first instance, the claimant’s claim was upheld. It was held that the summary of benefits alongside the contract outlined the whole contractual entitlement. Therefore, the contractual entitlement also included the escalator. The ET did state that there was reference to an insurer, but this did not mean there was a caveat to the contractual term that there had to be some insurance in place for the payment. The respondent appealed the decision.
The basis of the appeal was that the construction of the contractual document ought to have been such that it was limited to the insurance cover that was in place. The EAT dismissed this argument and the appeal. It was held that where there is any ambiguity in a term which purports to confer a benefit onto an employee then it should be interpreted in favour of the employee. It was held that to limit exposure then the employer should expressly communicate to the employee the nature of the limitation. This was not done so the escalator was a contractual benefit.
Practical Lessons
The important aspect coming out of this case is that contractual benefits will be construed in favour of the employee. This means that any ambiguity should be avoided, and clear limits must be placed on the benefits to be received by employees. Indeed, the EAT made it clear that there has been a consistent approach when it comes to the contractual interpretation in such situations. This must be borne in mind when documentation is being drafted and sent out to prospective employees as was the case here in 2009.
https://www.bailii.org/uk/cases/UKEAT/2021/001237_19_2408.html
Byrne v Aware Defeat Depression Ltd [2021] NIIT 108/20
Issues Covered: Disability Discrimination; Constructive Dismissal
The claimant was employed as the communications officer for the respondent from March 2013 in an office-based role. From 2015 she was line managed by the Director of Fundraising and Communications, but that director had resigned while the Claimant was off during a period of maternity leave followed by sick leave in 2017 and 2018.
The claimant was diagnosed with ulcerative colitis on 15th October 2017 and it was agreed that she was disabled in line with the definition under the Disability Discrimination Act 1995 from that point. On 2nd August 2018 the claimant met with the Head of Corporate Services about her return to work. The claimant requested that her working pattern be varied so that she could manage her condition and stress associated with the role. That variation (working four days a week including one day from home per week) was ‘apparently’ granted. There was no note-taker at that meeting nor no written confirmation of the variation.
The Tribunal made reference to the failings of the respondent stating:
‘It is a recurring feature of this case that ordinary common-sense procedures, which are followed by other employers in all areas of employment, and which make matters simpler and clearer for all parties, were not followed by the employer. All attempts by this tribunal to elicit a rational explanation for these failures were unsuccessful.’
The claimant continued to seek clarity and confusion reigned the whole way to the Tribunal. This meant there were mentions of a ‘trial’ for six months to ‘phasing back to work’. There was very little heed given to the disability of the claimant. At this point a new CEO came in and sought to redraft job descriptions. An agreement was in place with the claimant and her line manager. However, the CEO changed it substantially to which the claimant felt her role had been downgraded. Additionally, she wanted the variation to be made permanent. This was refused. The Respondent suggested that the Claimant apply under the Flexible working policy for a variation of contract. The claimant subsequently went on sick leave and occupational health outlined that her condition could be triggered by stress and that there needed to be greater clarity. Despite this the respondent continued with its push for a ‘phased return’ with the claimant being back to full-time work within 3 weeks. It was at this point the claimant resigned. She brought claims for disability discrimination and unfair constructive dismissal.
The Tribunal upheld these claims. For disability discrimination it was found that there was a failure to make reasonable adjustments when it came to the variation of work. This also went into direct discrimination on the basis of disability as there was a failure to treat the claimant’s condition seriously. Lastly, the constructive dismissal claim was upheld on the basis that there was a fundamental breach of contract by the failure to put in place reasonable adjustments and the disability discrimination faced. The Tribunal awarded £7,000 for injury to feelings as well as £2420.30 for a basic award and £500 for loss of statutory rights.
Practical Lessons
It should be a very simple objective of an employer to avoid the type of criticism that was faced by the respondent in this case. The quote above about failing to adhere to common sense procedures should put employers on notice to ensure that proper procedures are in place for all interactions with employees. This should mean there are notes taken and certainty provided for employees. The lack of certainty at the beginning led to this case snow-balling with the claimant’s condition not being properly considered. This led to the claim being brought and upheld against the respondent.
These case reviews were written by Jason Elliott BL. NI Tribunal decisions are available on the OITFET website:
http://www.employmenttribunalsni.co.uk/
If you have any queries or wish to comment on the reports please feel free to contact Jason at: jasondelliott@outlook.com
Jason Elliott was called to the Bar of Northern Ireland in 2013 and is the Associate Head of School of Law at Ulster University. As a practising barrister, he has developed a largely civil practice representing individuals, companies and public bodies in litigation. This covers a wide range of areas including personal injuries, wills and employment law. In terms of employment law, he has represented both applicants and respondents in the Industrial Tribunal. At Ulster University, Jason lectures extensively on the civil areas of practise such as Equity and Trusts and delivers employment law lectures for both undergraduate and postgraduate students.
Remember: Our case law reviews are now held in our case law section on our fully-searchable employment law hub website:
https://www.legal-island.com/employment-law-hub/case-law-search-page/
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3. Featured Annual Review Session of the Week: Brexit and the Irish Protocol: The Impact on Employment Rights
Between now and the Annual Review of Employment Law on 10th-11th November, we'll be highlighting a special session each week. This week we focus on "Brexit and the Irish Protocol: The Impact on Employment Rights". NI’s unique position in relation to Brexit means that we must follow certain EU rules. We also contend with our exceptional rules on frontier workers. So, what does this mean for employers in Northern Ireland? Ciara Fulton, Partner at Lewis Silkin (NI) LLP, looks at EU-led laws that continue to apply here and highlights key developments in the Republic of Ireland that may tempt employees to use their expertise in companies South of the Border.
You'll get the full description for the session online:
https://www.legal-island.com/event/annual-review-of-employment-law-2021/
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4. CIPD Calls For Mandatory Ethnicity Pay Gap Reporting By 2023
Just 13 of the UK’s top 100 listed companies currently report their ethnicity pay gap, analysis of official figures by the CIPD has found, leading to calls for mandatory ethnicity pay gap reporting to be introduced in the next two years.
The CIPD is also calling on the government to require organisations to provide a supporting narrative to explain the nature and causation of pay gaps, and an action plan of initiatives to reduce and remove any such gaps.
Without these, the organisation states, it is less likely that reporting will drive real change. Gender pay gap reporting has driven transparency and progress, and the same is needed for ethnicity pay gap reporting, said Peter Cheese, chief executive of the CIPD.
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5. Physical Proof of Status Should be Offered to EU Citizens: Joint Letter from Devolved Governments Calls for Additional Safeguard
The governments of Scotland, Wales and Northern Ireland are calling on the UK Government to offer EU citizens physical proof of their settled or pre-settled status. Currently, EU citizens who have secured settled or pre-settled status have no way of proving with physical documentation that they have the right to reside in the UK, potentially causing problems for their employment and access to services. A joint letter from Scottish, Welsh and Northern Ireland ministers has been issued to UK Government which voices their collective concern over the offer of a digital-only platform for proof.
This letter to Kevin Foster, UK Minister for Future Borders and Immigration, has been signed by Minister for Europe Jenny Gilruth, Wales’ Minister for Social Justice Jane Hutt, Northern Ireland First Minister Paul Givan and deputy First Minister Michelle O’Neill. Read the full statement here:
https://www.executiveoffice-ni.gov.uk/news/physical-proof-status-should-be-offered-eu-citizens
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6. Parental Bereavement: Proposed New Law 'Does Not Go Far Enough'
Plans to introduce laws on parental bereavement leave and pay in Northern Ireland are welcome but do not go far enough, a committee has heard. Last year Westminster brought in new rules so parents in Great Britain get bereavement leave up to two weeks. Stormont's economy department is introducing legislation to bring Northern Ireland in line.
But the Coalition for Bereaved Workers has said it is concerned the bill is a "missed opportunity". Craig Harrison from the cancer charity Marie Curie told Stormont's Economy Committee that while he welcomed the bill he wanted to see its scope widened.
"It is an important step towards fixing Northern Ireland's outdated protections for workers... but we are concerned that the playing field will continue to be uneven for everyone who falls outside of it," he said.
"The goal of the coalition is to see the introduction of two weeks' statutory bereavement leave and pay for everyone who is bereaved of a close relative or partner in Northern Ireland."
More from the BBC:
https://www.bbc.co.uk/news/uk-northern-ireland-58571148
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7. Coronavirus Employment-related Updates
Most Office Workers Will Never Return Full-Time
Most people do not believe workers will return to the office full-time after the coronavirus pandemic, an exclusive survey for the BBC suggests. A total of 70% of 1,684 people polled predicted that workers would "never return to offices at the same rate". The majority of workers said that they would prefer to work from home either full-time or at least some of the time. But managers raised concerns that creativity in the workplace would be affected. Half of 530 senior leaders also surveyed by polling organisation YouGov for the BBC said that workers staying at home would adversely affect both creativity and collaboration - against just 38% of ordinary people.
More from the BBC:
https://www.bbc.co.uk/news/business-58559179
One In Four Employees Would Sacrifice Pay To Keep Working Flexibly
The CIPD reported this week on research that found that more than a quarter of employees would be willing to take a pay cut if it meant they could continue working remotely.
A survey of 2,000 people conducted by Indeed found 26 per cent would be willing to sacrifice some of their salary if it meant that they could carry on working flexibly. On average, those who would take a pay cut said they would forgo up to £1,949 per year if it improved their work-life balance.
The Indeed research also found that relationships with coworkers had slipped down employees’ priority lists. In 2019, before the pandemic, colleagues were ranked the fourth most valued element in the workplace, cited as important by two in five (40 per cent) of those polled. In 2021, this had more than halved to just 19 per cent. This was supported by separate research that found one in three UK workers do not value the social interactions they get at work. More from CIPD:
https://www.peoplemanagement.co.uk/news/articles/one-in-four-employees-sacrifice-pay-keep-working-flexibly-poll-finds?utm_source=mc&utm_medium=email&utm_content=PM_daily_16092021.One+in+four+employees+would+sacrifice+pay+to+keep+working+flexibly%2c+poll+finds&utm_campaign=7295441&utm_term=1143814#gref
Long Covid Less Common Than Feared - ONS Study
One in 40 people with coronavirus has symptoms lasting at least three months, Office for National Statistics figures suggest. In April, an ONS report put the proportion at about one in every 10.
The latest, large and comprehensive analysis suggests long Covid may be less common than previously thought. But the condition is not fully understood and still has no universally agreed definition, leading to different studies producing different figures.
And like many other reports, the analysis suggests women, 50- to 69-year-olds and people with other long-term health conditions are the most likely to have some of these symptoms 12 weeks after a Covid infection.
People with high levels of virus in their body when testing positive are also more likely to have long Covid, the analysis suggests. More from the BBC:
https://www.bbc.co.uk/news/health-58584558
Covid-19 Vaccines For Over-12s And Boosters For Over 50s
Young people aged 12 to 15 in Northern Ireland will be offered Covid vaccines, while all over-50s and healthcare staff will be offered booster jabs. The changes to the vaccine programme were announced by Stormont's Department of Health, with the first boosters to be given within 10 to 15 days. Most school-aged children aged 12 to 15 are expected to primarily receive their Covid-19 vaccination in school. People aged 16 to 49 with underlying health issues can also have boosters. Health Minister Robin Swann said it would protect young people and prolong protection for those most at risk. An estimated 900,000 people will be eligible to receive a booster jab in Northern Ireland. Find the full story here:
https://www.bbc.co.uk/news/uk-northern-ireland-58555665
Close-Contact Pupils 'Should Not Be Sent Home From School'
Schools should not send pupils home as close contacts or ask them to self-isolate. That is according to written guidance to principals from the Department of Education (DE). The department said schools should not identify close contacts unless asked to do so by the Public Health Agency (PHA). On Friday last, the PHA took over lead responsibility for all contact tracing in schools. The move brings Northern Ireland into line with the approach taken by public health authorities in England, Scotland and Wales.
https://www.bbc.co.uk/news/uk-northern-ireland-58565658
What Data Can Employers Ask For On Vaccination Status?
This article from the CIPD provides helpful guidance on gathering and processing vaccination status data, though readers should be mindful that the regulations regarding care home staff apply in GB only.
https://www.peoplemanagement.co.uk/experts/legal/what-data-employers-can-ask-for-vaccination-status?utm_source=mc&utm_medium=email&utm_content=PM_Daily_14092021.Employment+law%3a+What+data+can+employers+ask+for+on+vaccination+status&utm_campaign=7295441&utm_term=5586392&utm_source=mc&utm_medium=email&utm_content=PM_Daily_14092021.Employment+law%3a%26nbsp%3bWhat+data+can+employers+ask+for+on+vaccination+status%3f&utm_campaign=7295441&utm_term=1143814#gref
Union Chief Warns ‘Jab Or Job’ Policy Could Leave Oil Firms ‘Wide Open’ To Legal Action
Leading trade unions have reacted to reports that oil and gas giant Shell is considering a “jab or job” policy for employees. Unite the union has pledged to take action towards “any employer” that dismisses its members for choosing not to receive a vaccine. Meanwhile, a senior figure at RMT said it would be a “foolhardy” operator that pursues the policy, which could leave them “wide open” to legal action. Last week, news agency Reuters said an executive committee memo shared by Shell set out that workers in certain areas could face a vaccine mandate. That includes crew on offshore rigs where self-isolation and evacuation is more complicated. Those who refuse to be double jabbed could be at risk of dismissal, the memo added.
When asked on Friday, the energy giant had no comment on whether the measures would extend to the UK sector. As it stands, only certain sectors in the UK like care homes have introduced a legal requirement for vaccinations. The speculation has prompted an angry response from Unite, with the union arguing it is a “basic human right” to decline to be vaccinated. John Boland, regional office at Unite, said:
“We have made our position clear to operators that we do not support mandating vaccinations. Unite’s policy is that members should get the vaccination, but it should be voluntary and employers should encourage the workforce to be vaccinated through communications and education, not using the threat of losing their job if they do not get the vaccine.
“Most operators appear to be using this method, and it is disappointing to see this policy document from Shell. We will challenge any employer that dismisses any of our members for exercising their basic human right not to be vaccinated.”
Energy Voice reports here: https://www.energyvoice.com/oilandgas/349307/union-chief-warns-jab-or-job-policy-could-leave-operators-wide-open-to-legal-action/
Treading The Fine Line Between Gov Guidance And Privacy Law, As Staff Return
In a similar story, the HR Director says employers risk breaking the Law as they respond to UK Government Guidance about policing staff vaccination. We will see vaccine mandates across the pond from September by Microsoft, United Airlines, Google, Walmart and other. However UK and European Law is quite different and in general does not permit measures of this kind.
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8. Data Protection Update
Sharing Personal Data In An Emergency – A Guide For Universities And Colleges
Starting university or further education can be an exciting time, but for some it can also be a difficult and anxious transition. The ICO has produced guidance for universities and colleges on sharing personal data in an urgent or emergency situation. This includes:
Plan ahead. Having an emergency plan in place that takes into account data sharing can help prevent any delays in a crisis. As a start, universities should consider in advance the types of data they currently hold and that are likely to be shared in an emergency. They also need to consider how they will share the data securely. The best way to do this is through a Data Protection Impact Assessment.
Have a data sharing agreement in place. When there is a need for universities to share students’ data on a more frequent basis, for example with health and wellbeing organisations, having a data sharing agreement in place can help so information is shared in a safe and timely way.
Staff training. Staff are more confident in using and sharing personal data appropriately when they have clear guidance and training around their roles and responsibilities. This includes specific advice for staff on how to handle personal information in an emergency situation.
Access ICO data sharing resources. ICO data sharing code of practice provides practical guidance for organisations to share data fairly, lawfully and proportionately. Alongside the code, our data sharing information hub has many helpful resources including myth-busting facts, case studies, FAQs and checklists.
https://ico.org.uk/about-the-ico/news-and-events/news-and-blogs/2021/09/sharing-personal-data-in-an-emergency-a-guide-for-universities-and-colleges/
G7 Data Protection And Privacy Authorities’ Meeting: Communiqué
The UK Information Commissioner’s Office (ICO) brought together data protection and privacy authorities from G7 countries, as well as guests from the Organisation for Economic Cooperation and Development (OECD) and the World Economic Forum (WEF), for a discussion this week on shared emerging challenges that need closer international collaboration.
Chaired by Information Commissioner Elizabeth Denham, the meeting took place virtually on 7-8 September where G7 authorities agreed on a communiqué that sets out their commitment to cooperate in specific areas.
A summary of each area and key points from the two-day discussion, together with the full story are available here:
https://ico.org.uk/about-the-ico/news-and-events/news-and-blogs/2021/09/g7-data-protection-and-privacy-authorities-meeting-communiqu%C3%A9/
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9. Equality Update
Diversity Pay Gap – PWC
PwC has published data about the pay gap between its employees of different socio-economic backgrounds, reporting a reduction in nearly all their pay gaps compared to 2020. This inlcudes:
- An ethnicity pay gap of 0.3%.
- A gender pay gap of 10.1% including partners (6.0%) excluding partners.
- A socio-economic background pay gap of 12.1% (10.9% excluding partners.
More from PWC here:
https://www.pwc.co.uk/who-we-are/our-purpose/empowered-people-communities/inclusion/diversity-pay-report.html
Child Safeguarding Expert Wins Damages from NHS Gender Identity Clinic
An NHS trust has been ordered to pay £20,000 compensation to an employee who raised concerns about the safety of children. The Tavistock and Portman NHS Foundation Trust, in Belsize Lane, was instructed to make the payout to Sonia Appleby, its child safeguarding expert, following an employment tribunal case. The tribunal ruled that Tavistock and Portman’s treatment of the psychotherapist, 62, for whistleblowing harmed her professional standing and “prevented her from proper work on safeguarding”. A panel of employment judge Sarah Goodman and two lay members upheld Sonia’s claim that the trust subjected her to “detriment on grounds of protected disclosures”. The £20,000 compensation was for “injury to feelings”. More from Ham & High here: https://www.hamhigh.co.uk/news/health/nhs-trust-loses-sonia-appleby-whistleblower-case-8303320 and The Christian Institute give their take here: https://www.christian.org.uk/news/whistleblower-wins-tribunal-against-trans-clinic/
Refusal to Allow Four Day Week Was Discrimination
An estate agent has been awarded more than £180,000 after her boss refused to let her leave early to pick her daughter up from nursery. Sales manager Alice Thompson wanted to work for four days a week and finish at 5pm rather than six o'clock when her childcare finished. But company director Paul Sellar rejected her request claiming the business couldn't afford for her to go part time and she resigned. Mrs Thompson took London-based agency Manors to an employment tribunal claiming sex discrimination in a bid to ensure her daughter does not have 'the same experience' when she is older. Now she has been awarded £184,961.32 as compensation after a panel found that making her work until 6pm - when nurseries ordinarily close - placed her at a 'disadvantage'.
The comments section is eye-opening - if you feel this award is outrageous and want to be validated, have a read. Or steer clear if you think the judgment was spot on and don't want to feel depressed - your choice! Full story from the Daily Mail here:
https://www.dailymail.co.uk/news/article-9962815/Estate-agent-awarded-180-000-boss-refused-let-leave-early.html#comments
And for the BBC's take: https://www.bbc.co.uk/news/business-58473802
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10. Legislative Update
The Employment Act (Northern Ireland) 2016 (Commencement No. 4) Order (Northern Ireland) 2021
This Order brings into operation certain provisions of the Employment Act (Northern Ireland) 2016 (“the Act”).
Article 2(a) commences the provision that provides the Department with the power to prescribe by regulations requirements, in addition to those already in statute, which parties may be required to meet as a condition of continuing to participate in particular Industrial Tribunal proceedings.
Article 2(b) commences the provision that provides the Department with the power to prescribe by regulations other requirements, in addition to those already in statute, which parties may be required to meet as a condition of continuing to participate in particular Fair Employment Tribunal proceedings.
Article 2(c) empowers the Department to make appropriate provision to prevent abuses associated with the use of zero hours contracts, non-contractual zero hours arrangements or worker’s contracts of a kind to be specified in regulations.
Article 2(d) requires the Department to make arrangements for providing careers guidance for such persons as it considers appropriate, and empowers the Department to make regulations which deal with the delivery of careers guidance.
Article 2(e) enables the Department to make regulations requiring arrangements to be made for providing apprenticeships and traineeships.
Article 2(f) commences the provision amending the Employment Rights (Northern Ireland) Order 1996 so that the Department’s powers to amend certain legislative provisions are made subject to the draft affirmative procedure before the Assembly.
Article 2(g) and (h) gives effect to the repeal of relevant statutory provisions in Schedule 3 of the Act.
https://www.legislation.gov.uk/nisr/2021/253/contents/made
The Health Protection (Coronavirus, Wearing of Face Coverings) (Amendment No. 5) Regulations (Northern Ireland) 2021
These Regulations amend the Health Protection (Coronavirus, Wearing of Face Coverings) Regulations (Northern Ireland) 2020 by permitting those dancing at a wedding reception or a civil partnership reception not to wear a face covering.
https://www.legislation.gov.uk/nisr/2021/250/contents/made
The Health Protection (Coronavirus, Restrictions) Regulations (Northern Ireland) 2021 (Amendment No. 15) Regulations (Northern Ireland) 2021
These Regulations amend the Health Protection (Coronavirus, Restrictions) Regulations (Northern Ireland) 2021 by—
- removing the requirement to obtain a ticket in advance of an indoor theatre or concert event and to have allocated seating;
- permitting dancing at a wedding reception or civil partnership reception;
- removing the requirement to be seated at a table to order or collect food and drink;
- removing the requirement for music at an ambient level;
- removing the requirement for persons at outdoors part of premises to be seated to consume food or drink; and
- permitting persons to play a gaming machine or play a game such as pool, snooker or darts.
They also increase the number permitted to gather indoors, at a private dwelling, from ten to fifteen persons (not including children aged 12 or under) from four households
https://www.legislation.gov.uk/nisr/2021/251/contents/made
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11. Just in Case You Missed It...
The Right To Disconnect – What Is It And Do I Need A Policy?
Leeanne Armstrong TLT NI LLP provides an invaluable guide to flexible and hybrid working arrangements as they become more prevalent.
https://www.legal-island.com/articles/uk/features/employee-handbook/2021/september/the-right-to-disconnect--what-is-it-and-do-i-need-a-policy/
The Struggle to Find a New Normal – Pandemic Management in Schools
Frank Cassidy, Former Principal & Regional Officer of ASCL, discusses the 'new normal' and the complexities of the new school year.
https://www.legal-island.com/articles/uk/features/education1/2021/september/the-struggle-to-find-a-new-normal--pandemic-management-in-schools/
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12. Employment News in the Media
The TUC has welcomed Labour pledges to extend sick pay to all and raise it, and to ban zero-hours contracts and deliver day one rights for workers. Commenting on Labour leader Keir Starmer’s speech at Congress, TUC General Secretary Frances O’Grady said: "Keir Starmer is right to focus on dignity at work. This pandemic has exposed the inequality and insecurity at the heart of our labour market.” More:
https://www.tuc.org.uk/news/tuc-welcomes-labour-announcement-sick-pay-and-zero-hours-contracts
A man who was sacked for presenting an expenses claim for almost £60,000 after agreeing to leave the company has won his case for unfair dismissal. Paolo Porchetti was a regional manager at Leicestershire engineering firm Brush UK, but was asked to leave in May 2019 following poor performance. After agreeing a severance package he was dismissed with immediate effect in July 2019 due to the expenses claim. A tribunal upheld Mr Porchetti's complaint but awarded no damages. More from the BBC:
https://www.bbc.co.uk/news/uk-england-leicestershire-58494243
A host of top law firms have been recognised for their efforts to become more ‘family-friendly’. The annual list, compiled by UK charity Working Families, scores businesses on four key areas to compile a comprehensive overview of their flexible and family-friendly policies as well as practices that specifically support mothers, fathers, and carers. These are: integration to organisational strategy and culture; policy; consistent practice; and evidence and statistics. Pinsent Masons featured among the top ten for the fifth consecutive year alongside the likes of the Crown Prosecution Service, American Express, Citi Group and the Welsh Parliament. Looking across the entire 30-strong list, which is not ranked but listed alphabetically, there are also spots for Allen & Overy, Brodies, DAC Beachcroft, DWF, Mayer Brown, Mishcon de Reya and Norton Rose Fulbright. Legal Cheek picks up the story:
https://www.legalcheek.com/2021/09/top-city-law-firms-feature-on-family-friendly-employers-list/
This may come as a shock to some but in the USA there’s a different minimum wage for restaurant employees than for workers in most other industries. In Pennsylvania, for example, that minimum wage is just $2.83 an hour. Every state in the US has these “tipped wages”. According to minimumwage.org, the tipped wage is as little as $2.13 an hour in 19 states and as high as $10 in New York. Here’s how it works in Pennsylvania: restaurant owners here have to pay their workers just $2.83 an hour (the federal minimum) as long as those employees receive enough tips so that their total hourly wage exceeds the state (and national) minimum of $7.25. There is a logic to this. State-based tipped wage rules are designed to allow restaurant owners to lower their payroll costs and let customers make up the difference. Full story from The Guardian:
https://www.theguardian.com/global-development/2021/sep/12/restaurant-workers-are-getting-stiffed-its-time-for-employers-to-pay-up
Russian authorities have blocked a leading website for employee complaints following a successful legal case by a Moscow real estate firm – the latest internet block by the country’s communications regulator. Antijob, the site in question, has been in operation for 17 years, and hosts thousands of anonymous complaints about Russian employers. More here:
https://www.opendemocracy.net/en/odr/russia-blocks-major-website-worker-complaints-antijob/
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13. 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.
Mental Health In The Workplace
Small Business Minister Paul Scully has written an open letter to businesses about the resources available to help promote positive mental health in the workplace. The government has recently published the COVID-19 Mental Health and Wellbeing Recovery Action Plan which sets out its ambitious, cross-government approach to promoting positive mental health and supporting people living with mental illness to recover and live well.
Resources include:
- Mind, the mental health charity, have developed the Mental Health at Work website - this hosts over 400 resources to inform and advise employers on managing mental health in the workplace
- Mental Health at Work includes a toolkit with advice and resources especially for small businesses.
- businesses and individuals can also receive free and impartial advice about issues relating to money or debt, from the Money Advice Service.
Full plan here:
https://www.gov.uk/government/publications/covid-19-mental-health-and-wellbeing-recovery-action-plan
Flexible Working ‘A Huge Positive’ Of Pandemic
Flexible and home-working options will remain available to government employees for the long term, civil service chief operating officer Alex Chisholm has suggested, calling the greater flexibility that has come about during the pandemic a “huge positive”. Speaking to MPs on the Public Accounts Committee this week, Chisholm said that, because departments have been forced to adjust under coronavirus restrictions, “we have found that overall, at civil service level we can move towards a greater number of people working more flexibly – in some cases from home, in many cases across offices across all of the UK – which is a huge positive”.
He said MPs on the committee would recall “how many times civil servants have felt it is difficult and expensive to have to bring in everybody down to a meeting in London, face to face”.
“That is not necessary anywhere near to the same extent, as well as [maintaining] that expensive London real estate, so definitely some great opportunities there,” he said.
More from PublicTechnology: https://bit.ly/3lr6ub3
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14. South of the Border
This section is brought to you by Ciara Fulton, Partner at Lewis Silkin (N.I.) LLP. Ciara is dual-qualified and practices law throughout the island of Ireland. Contact Ciara on ciara.fulton@lewissilkin.com.
Eagerly Awaited Guidance On Returning To The Workplace Published
Since the onset of the pandemic in March 2020, necessary public health measures have been in place requiring many workers to work from home. Thanks to the considerable flexibility and effort on the part of employers and workers, this obligatory and sudden move to mass home working has worked well, in most cases. Working from home has contributed greatly to keeping people safe and has played an enormous part in reducing transmission of COVID-19. However, it must also be acknowledged, the requirement to work from home has been a considerable challenge for many workers and for many businesses. As we move beyond COVID-19, our experiences during the pandemic, and how businesses and workers have adapted, will inform the future of work in Ireland, a future in which new ways of working, including remote working, will play a more significant role.
The current public health guidance remains that workers should work from home unless necessary to attend in person. Employers and workers should continue to follow this guidance. On 31 August 2021, the Government, in Reframing the Challenge: Continuing our Recovery and Reconnecting, as part of a gradual and careful re-opening process, issued updated guidance to take effect from 20 September 2021. From that date, attendance at the workplace for specific business requirements, for those still working from home, may commence on a phased and staggered basis. Employers, together with their workers, should now start planning and preparing for a staggered and phased return to the workplace as of 20 September. The Government is also calling on employers, in consultation with their workers, to start to develop longer-term arrangements for blended or remote working having regard to their operational requirements. Read the full guidance here:
https://enterprise.gov.ie/en/Publications/Publication-files/Guidance-Note-Returning-Safely-to-the-Workplace-from-20-September.pdf
Jennifer Cashman, Practice Group Leader of RDJ’s Employment Team reviews the updated guidance on returning safely to workplace on the 20th September 2021.
https://www.legal-island.ie/articles/ire/features/supplementary/2021/sept/eagerly-awaited-guidance-on-returning-to-the-workplace-published/
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15. Free Webinars This Month
Employment Law at 11 - With O'Reilly Stewart Solicitors
The First Friday of every month (11:00am - 11:45am)
Register for the next webinar in the series, during which Christine Quinn from Legal Island will discuss your employment-related questions with Seamus McGranaghan from the employment team at O'Reilly Stewart solicitors.
Join Christine and Seamus and up to 500 participants as they discuss your employment law queries live in our webinar series, “Employment Law at 11”.
Tell your HR colleagues and register individually or get your HR team around the computer 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.
NOTE: – send questions in live during the webinars or drop a line in advance to Katie@legal-island.com. Anonymity assured.
Register Now: https://www.legal-island.com/event/forthcoming-webinars-ni/
Check out previous discussions:
https://www.legal-island.com/resources/any-questions-webinars/
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16. Weekend Weather and Thought-Provoking Video
Today will be an unsettled day that will be cloudy and wet with blustery rain, possibly heavy at times expected. Saturday should be a dry and fine day as a weak ridge of high pressure moves into the region. Plenty of sunshine is expected. Sunday will be variably cloudy with the chance of the odd shower or spot of rain. Maximum daytime temperatures of 17°C.
Go to the BBCNI for local information: http://bbc.in/tw39eP
This week's thought-provoking video is called 'Success, Failure and the drive to keep creating'. Elizabeth Gilbert was once an "unpublished diner waitress," devastated by rejection letters. And yet, in the wake of the success of 'Eat, Pray, Love,' she found herself identifying strongly with her former self. With beautiful insight, Gilbert reflects on why success can be as disorienting as failure and offers a simple -- though hard -- way to carry on, regardless of outcomes. Listen here:
https://www.ted.com/talks/elizabeth_gilbert_success_failure_and_the_drive_to_keep_creating
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.
Legal-Island
This article is correct at 17/09/2021Disclaimer:
The information in this article is provided as part of Legal-Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article.
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