Weekly Review of Developments 16/09/2022Posted in : Weekly Review of Developments on 16 September 2022
REMINDER: Monday 19th September 2022 has been designated as a Bank Holiday for the State funeral of Her Majesty Queen Elizabeth II
This week's top 5:
- Your Annual Employment Law Update 2022 – Early Bird Offer Ends 5pm on Wednesday
- Bank holiday announced for Her Majesty Queen Elizabeth II’s State Funeral
- Negative feedback? How To Strip Out the Helpful from the Unhelpful
- Northern Ireland barristers welcome U-turn on human rights
- Breakfast briefing with Stephen Frost - 22nd September - All State, Belfast
And in other news...............International Equal Pay Day, celebrated on 18 September, represents the longstanding efforts towards the achievement of equal pay for work of equal value. Have a look at this great video narrated by Rachel McAdams.
- Your Annual Employment Law Update 2022 – Early Bird Offer Ends 5pm on Wednesday
- Case Law Reviews
- Bank holiday announced for Her Majesty Queen Elizabeth II’s State Funeral on Monday 19 September
- World Suicide Prevention Day - 10th September 2022
- IR35 Review
- Sexual Orientation Cannot Be A Reason To Refuse To Conclude A Contract With A Self-Employed Worker
- Legislative Update
- Just in Case You Missed It...
- HR Developments
- Employment News in the Media
- GB Developments
- South of the Border
- Friends of Legal Island
- Free Webinars This Month
- Weekend Weather and Thought-Provoking Video
2022 has been another challenging year for HR professionals throughout Northern Ireland.
Our flagship Annual Review of Employment Law conference brings together leading employment law solicitors and HR experts to provide a comprehensive update on the most important developments HR professionals in Northern Ireland need to know.
It’s LIVE online on Wednesday 16 & Thursday 17 November 2022.
Our promise to you:
- A comprehensive update covering the most important employment law developments you need to know
- Sessions delivered by specialist jurisdiction specific employment lawyers, HR and subject matter experts
- A great opportunity to network with your HR and legal peers from across Northern Ireland
- Comprehensive pack of notes, slides and session recordings so you won’t miss a thing!
- Event Takeaways including practical action plans and key next steps
- Excellent customer service and a dedicated tech team available before and during the conference
- A user-friendly event platform with technical support available to you throughout
Join hundreds of your HR peers in learning from hand-picked speakers across 19 sessions including:
- Review of the Year (Part 1 and Part 2) with Mark McAllister, Director of Employment Relations Services, LRA
- Northern Ireland Case Law Review 2022 and Key Next Steps with Jason Elliott BL
- Social Media and the Impact of External Pressure to Dismiss with Louise McAloon, Partner, Worthingtons
- Menopause is Very Much a Workplace Issue with Rachel Penny, Partner, Carson McDowell
- Holiday Pay Update with Paul Gillen, Partner, Lewis Silkin LLP
- A Review of the Law Around Fire/Re-Hire Strategies with Emma McIlveen BL
Plus 13 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
Our early bird offer ends at 5pm on Wednesday (21st September). Register now to grab our Early Bird Rate and you’ll save up to £60 per attendee:
Dinsmore v Terex GB Limited  NIIT 18568/21
Issues Covered: Unfair Dismissal; Misconduct
The claimant commenced employment with the respondent in June 1988 and at the time of dismissal, in October 2020, was a Stores Supervisor at the Dungannon site. The respondent is a manufacturer of mobile screening, washing and recycling equipment for the quarry/mining industries. As a result of the heavy engineering the respondent operates a ‘safety first’ policy. On 25th June 2020, another employee, Mr Collins, was operating a forklift vehicle and accidently pushed a 41kg pump off warehouse shelving causing it to drop 13 feet to the floor. Mr Collins reported this to the claimant the following day. The claimant reported the pump damaged to the Quality Inspector who then asked for it to be scrapped. There were then queries in relation to how the pump had become damaged considering that it was worth £1500. As a result, this was investigated.
This case demonstrates the approach that the Tribunal has to take when there is a case brought relating to the substantive fairness of a decision to dismiss. The ‘band of reasonable responses’ test has long been used within these cases and it can be seen as favouring the employer. This is on the basis that the Tribunal is not looking just at what is ‘reasonable’ from their perspective but from the perspective of employers generally and what falls within that ‘band’. Considering the importance of safety in this workplace and the claimant’s supervisory role this meant that the Tribunal found that the decision to dismiss did fall within those bands of reasonableness.
Al-Jibouri v ZLX Limited  NIIT 29493/21
Issues Covered: Time Limits; Unlawful Deduction from Wages; Race Discrimination
The claimant was employed as a Business Development Manager from 1st June 2020 until 18th December 2020. The reason put forward for the dismissal by the respondent was redundancy. The claimant presented his ET1 form on 18th May 2021 alleging that his dismissal was on the grounds of race as well as bringing a claim for unlawful deduction from wages. The date of dismissal was disputed with the claimant alleging that it was the 18th January 2021 as he was put on four weeks’ gardening leave.
This case provides yet another explanation of the importance of bringing a claim within time. It can be very difficult for claimants to demonstrate that time should be extended and where they are seeking to do so they must be able to prove that it is just and equitable in a discrimination case. Usually, this would be done by showing tangible evidence that they were unable to bring their claim for a particular reason. In this case, the claimant’s evidence and the lack of weight attached to it by the Tribunal meant that they did not exercise their power to extend time and the race discrimination claim was dismissed.
These case reviews were written by Jason Elliott BL. NI Tribunal decisions are available on the OITFET website:
If you have any queries or wish to comment on the reports please feel free to contact Jason at: firstname.lastname@example.org
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:
Monday 19 September, the date of Her Majesty Queen Elizabeth II’s State Funeral, will be a national bank holiday. This will allow individuals, businesses and other organisations to pay their respects to Her Majesty and commemorate Her reign, while marking the final day of the period of national mourning. This bank holiday will operate in the same way as other bank holidays, and there is no statutory entitlement to time off. Employers may include bank holidays as part of a worker’s leave entitlement.
The bank holiday will take place across the United Kingdom. More information from gov.uk here:
The Employment Team at Tughans provides some helpful insights:
Extra Bank Holidays: How do I Handle it?: https://www.legal-island.com/articles/uk/features/how-do-i-handle-it/2022/march/extra-bank-holidays-how-do-i-handle-it/
And for an insight into the implications for employers, Lewis Silkin has a useful article:
Personnel Today reports on the help that employee benefits can make for employees contemplating suicide.
GRiD, the industry body for the group risk sector, has carried out extensive research into employee benefits and whether they are well-received. Undertaken among over 500 HR decision makers in companies of all sizes across the UK, the research were released by GRiD to coincide with World Suicide Prevention Day on 10 September. It reveals that only 53% of companies say their staff appreciate their employee benefits ‘very much’.
Katharine Moxham, spokesperson for GRiD, says: “If employees don’t appreciate their benefits, then it is going to be difficult for them to achieve what they are designed to do.
“For this World Suicide Prevention Day, we would like to highlight how important it is that employers don’t just put benefits in place, but that they regularly tell their staff what support is available, actively encourage them to use it, and measure how much it’s utilised and appreciated. This is the best way to ensure benefits do what they’re designed to, which is particularly important in terms of accessing support for mental health.”
Lack of Measurement
The research found that only 51% of employers even measure staff appreciation of benefits. This decreases and increases in line with numbers of employees: with the smallest companies being least likely to measure appreciation of benefits, and large corporates the most likely to assess how they are valued.
When it comes to measuring staff appreciation of benefits, the most popular methods are through informal feedback to managers or HR professionals, or through formal survey. Both of these methods are used by 41% of employers. The next most popular options are a suggestion box and employee benefits forums or working groups, both used by 38% of companies.
Management information (MI) on utilisation of benefits is the least popular option, only used by 16% of employers. This is a missed opportunity to gauge how much a benefit is really used and is a good option in conjunction with other methods to understand how employees value benefits on offer.
UK prime minister Liz Truss is being reminded of her pre-election promise to review the IR35 tax avoidance reforms and address what she previously called the “very poor” handling of the government’s controversial loan charge policy. During Truss’s Conservative leadership campaign, which culminated in her becoming prime minister today (6 September), she pledged to review the IR35 tax avoidance rules, claiming that they were forcing genuinely self-employed people to pay too much tax.
The pledge was greeted with a fair degree of scepticism by contracting market stakeholders, who said that previous reviews of the rules had done little to address the problems and impacts caused by IR35. Now Truss is in power, many of these same stakeholders are calling for her to make good on her pledge, while also restating their demands that her review must deliver “meaningful change”.
Among them is Andy Chamberlain, director of policy at the Association of Independent Professionals and the Self-Employed (IPSE), who said his organisation is “looking forward” to working with Truss and her cabinet on her promised review of the IR35 rules. More from Computer Weekly:
6. Sexual Orientation Cannot Be A Reason To Refuse To Conclude A Contract With A Self-Employed Worker
The Advocate General has ruled that the Equal Treatment Directive covers the situation of a refusal to sign a contract with a self-employed worker because of his sexual orientation. She also clarifies that the freedom to choose a contracting party cannot be usefully relied on to justify discrimination based on sexual orientation.
A self-employed worker provided editing services to a Polish public television station for seven years on the basis of consecutive short-term contracts. In December 2017, he and his partner published a Christmas music video aimed at promoting tolerance towards same-sex couples on Youtube. Shortly after publication of this video, the television station informed the worker that his current contract was terminated and that no new contract would be concluded. More here:
The Rehabilitation of Offenders (Exceptions) (Amendment) Order (Northern Ireland) 2022
This Order amends the Rehabilitation of Offenders (Exceptions) Order (Northern Ireland) 1979 (“the 1979 Order”) to bring individuals who are offering to provide accommodation to a person who has permission to enter into, or to stay, in the United Kingdom, granted under immigration rules in relation to the Homes for Ukraine Sponsorship Scheme, within the excluded circumstances set out in Article 2 of the 1979 Order.
The 1979 Order disapplies specific provisions of the Rehabilitation of Offenders (Northern Ireland) Order 1978 (“the 1978 Order”) which would otherwise prevent a person from having to disclose a spent conviction and protect that person from being prejudiced by that conviction or any failure to disclose it. The general effect of the disapplication is to allow, in specific circumstances, questions to be asked about spent convictions (except where they are protected convictions as described in Article 1A of the 1979 Order) in order to assess a person’s suitability for admission to certain occupations, or to hold certain types of employment, licences or permits. It also allows spent convictions, or failure to disclose them, to be grounds for excluding a person from these occupations, or making decisions in relation to those types of employments, licenses and permits.
Article 5(2) of the 1978 Order (which relates to questions asked about criminal convictions otherwise than in the course of judicial proceedings) is excluded in relation to questions put in the various circumstances specified in Article 2 of the 1979 Order. The questions to which Article 2 applies include questions on the assessment of a person’s suitability for various professions, offices, employments, occupations or to hold certain licences, certificates or permits.
Article 3 of this Order inserts a new paragraph (n) into Article 2(1) of the 1979 Order so that any question asked to assess the suitability of an individual offering to provide accommodation (whether residing in that accommodation or not) to a person who has permission to enter into or stay in the United Kingdom, granted under immigration rules in relation to the Homes for Ukraine Sponsorship Scheme, is included within the scope of the exceptions set out in the 1979 Order, requiring them to self-disclose spent convictions. These circumstances also extend to those individuals over the age of 16 years who are also residing in the accommodation to be provided.
The Order comes into operation on 3rd October 2022.
Slavery And Human Trafficking – A Re-Cap On Business Requirements
In 2015, the Modern Slavery Act 2015 (‘the Act’) consolidated criminal offences relating to human trafficking, forced labour and slavery. Slavery is widely defined to include servitude, forced labour and human trafficking; the Act came into force. Leanne Armstrong of TLT revisits the current requirement to produce a statement, who it applies to and what must be covered.
Negative feedback? How To Strip Out The Helpful From The Unhelpful
Some people take honesty way too far! They pride themselves on saying it how it is and BOOM, you're knocked for six. They have a convenient excuse for their bluntness of course: "I'm just being honest - I call a spade a spade".
On the one hand, negative feedback is a key driver of effective performance and the best leaders seek it out (Harvard Business Review, May 31st, 2018) but on the other hand, negative feedback can be inaccurate and driven by other people's hidden agendas, jealousy, and/or insecurity. This thoughtprovoking and practical article from Andrew Pain will help you sort the helpful from the unhelpful:
A Christian nuclear submarine officer has filed a claim for discrimination – because he objects to nuclear weapons on religious grounds. Sub-Lieutenant Antonio Jardim told Royal Navy superiors that he was opposed to the use of Britain’s nuclear deterrent just days after being assigned to HMS Vanguard, a Trident missile-armed submarine. He complained that after he made his objection he was nicknamed ‘Trigger’ by fellow sailors because of his aversion to the weapons, lost his security clearance, was banned from being on board HMS Vanguard, and made to spend a year on shore-based employment in Portsmouth, Hampshire. He has launched legal action after resigning, by taking the Ministry of Defence to the tribunal claiming to be the victim of religious discrimination. More from the HR Director:
Hundreds of Amazon workers at a warehouse in Coventry are being balloted on whether to strike. The online retail giant's staff have been staging informal protests after an "insulting" pay offer, a union said. Amazon has previously said it has increased its hourly rate to £11.45, depending on location, and that staff have "comprehensive benefits". The GMB Union said Coventry's staff could be the first Amazon workers to strike in the UK, "making history". More from the BBC:
The Bar of Northern Ireland has welcomed the shelving of UK government plans to reform human rights legislation. The proposed Bill of Rights was due to be debated in Parliament next week, but government officials have said it is now “unlikely to progress in its current form” under new prime minister Liz Truss. More from Irish Legal News:
A paediatrician who filmed a colleague in hospital after reporting her to bosses 20 times and was disciplined for 'exaggerating her account of events' has lost a tribunal case against an NHS trust. A tribunal heard that Therese William, a Consultant Paediatrician and Neonatologist, had a 'poor working relationship' with a fellow consultant, referred to as Dr E, when an incident took place at University Hospital Lewisham in July 2019. On July 30, 2019, an argument escalated when Dr E had complained she had not been able to find Dr William before a complicated twin birth to discuss the procedure. Dr E began filming Dr William, who responded by pulling out her own phone and also started recording the dispute. More from the Daily Mail:
A Somalian-born cleaner who was called a ‘golliwog’ and ‘cheeky monkey’ by a colleague is set for a pay-out. Susan Standing was ruled to have made the comments to Faisal Abdi, 38, while he was working as a cleaner for a company used by Nationwide Building Society. An employment tribunal at Cardiff Magistrates Court also concluded Ms Standing told Mr Abdi he resembled a ‘golliwog’ in October or November 2019, then in July the following year branded him a ‘cheeky monkey’. Mr Abdi had accused fellow worker Susan Standing of using the phrase ‘cheeky monkey’ during a disagreement at work. More from Metro:
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.
Staff Attendance Being Monitored
The Cabinet Office is monitoring staff members’ computer and wifi logins to ensure civil servants are complying with ministers’ back-to-the-office drive, it has emerged.
A privacy notice for the department’s Official IT platform was updated last week to reveal that staff data – including system usage, IP addresses, office locations and email and document access logs – is being used to monitor office attendance.
The data is being processed “to compile anonymised office occupancy statistics and report on overall numbers of staff attending Cabinet Office locations, in order to monitor overall compliance to office working and inform future strategy of how Cabinet Office estates are used”, the notice says.
Departments began publishing office-occupancy data for their Whitehall headquarters in June amid a push by then-government efficiency minister Jacob Rees-Mogg to get more officials back at their office desks. More from Civil Service World:
And not surprisingly there is a reluctance from many civil servants to return to the office:
Meanwhile in teh Republic of Ireland, a new study has revealed a decline in the numbers of people working from home:
Employment Tribunal Statistics
Personnel Today speculates that a rise in disposals of employment tribunal claims could mean that more claims are settling. The latest figures from the Ministry of Justice show that the number of employment tribunal claims ending in disposal has increased by 114%. The rise in “disposals” – meaning the claim has been withdrawn, settled, dismissed or decided at another hearing – could be a sign that the long backlog of tribunal cases waiting to come to court has led claimants to settle instead, according to one employment lawyer.
The MoJ said 15,000 employment cases ended in disposal over the quarter April to June 2022 (Q1 2022/23), an increase of 114% compared to Q1 2020/21 (data for Q1 2021/22 is unavailable due to a database migration). The number of multiple claims that were disposed was 8,200, while 6,500 single claimants disposed their cases. At the end of June 2022, 487,000 cases were outstanding (43,000 single claims and 443,000 multiple claims), it said.
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 email@example.com.
SSP Scheme Commences January 2023
The Tánaiste has announced that he will commence the Sick Leave Act on 1st January 2023. This Act will, for the first time, introduce an entitlement for all employees to sick leave paid by their employer in addition to illness benefit from the State.
The initial entitlement to statutory sick leave from employer will be up to three days’ medically certified leave in a year. Regulations will provide for this to be capped at 70% of gross pay subject to a daily maximum of €110. Illness Benefit is available from the Department of Social Protection from day 4 and for up to two years.
Speaking about the commencement of the Sick Leave Act, the Tánaiste said:
“Nobody should have to go to work when they are sick for fear of having no income. It’s not good for them or their co-workers. For the first time, there will be an entitlement for almost all employees to paid sick leave. The entitlement is based on the calendar year.
“This is a very important new right for all employees and was a personal priority for me as Minister. Given the current challenging business environment and inflation in particular, I have concluded that the fairest and most appropriate approach is to introduce the entitlement on 1 January 2023.”
The Sick Leave Act 2022 is available here:
Want to know more? Join Legal Island and Lewis Silkin LLP in a FREE webinar at 11am on 23rd September 2022 when we'll discuss this very issue!
Invitation: Breakfast briefing - 22nd September - 8:30- 10:00am
It’s time to think differently about diversity and inclusion. We’re pleased to invite you to a breakfast briefing featuring Stephen Frost, to mark the launch of new book The Key to Inclusion.
Stephen Frost is a globally recognised voice in diversity and inclusion and CEO of Included, the global diversity and inclusion consultancy. He led the inclusion programmes for the London 2012 Olympic and Paralympic Games, has led D&I at KMPG, taught at Harvard Business School and has written four books on workplace inclusion.
Join us from 8:30am on 22nd September at the Allstate NI office for an engaging, frank conversation on workplace inclusion hosted by Allstate Managing Director, John Healy.
The panel sharing their insights features:
- Stephen Frost, CEO of Included, the global diversity and inclusion consultancy.
- Jill Minne, Strategic Director of HR at The Northern Ireland Civil Service
- David Johnston, Chartered FCIPD and D&I Advocate. Previously Head of EDI for Police Service of Northern Ireland.
We’d love to see you there! Bring your questions about workplace inclusion, we’ll provide coffee, pastries, expertise, and insight.
Respond HERE to secure your place on the guest list.
Comparative Table Webinar with Lewis Silkin LLP - Sick Leave Legislation
Friday 23 September 2022 (11.00am - 12.00 pm)
The next webinar in our comparative law webinar series in association with Lewis Silkin will cover the recently introduced sick leave legislation in Ireland, which provides employees, for the first time, with a legal right to sick leave paid by their employer. We will discuss what lessons can be learnt from experiences in Great Britain and Northern Ireland including in relation to effective staff absence management and the pitfalls to try to avoid.
Join Rolanda Markey of Legal Island as she discusses this important topic with Kevin Gallagher Senior Associate of Lewis Silkin NI and Niamh Crotty Senior Associate of Lewis Silkin ROI.
This webinar will coincide with the launch of the updated Comparative Law table.
Check out previous discussions:
Saturday looks to become mainly cloudy, with the occasional spot of light rain possible. Winds will ease. Sunday morning looks to see cloud and a few spells of rain move in from the north, but these should clear later, turning brighter. Monday will be a dry day, with variable cloud and sunny intervals. Light winds. Maximum daytime temperatures of 15°C.
Go to the BBCNI for local information:
This week's thought-provoking video is "Explained: Why Women are Paid Less" - a short film from Netflix on what Equal Pay really means.
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.
Enjoy the weekend.
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.