What’s Happening in Northern Irish Employment Law in 2024?Posted in : Supplementary Articles NI on 5 January 2024
Following the political talks before the holidays, could we see the return of the Executive and Assembly in Northern Ireland in early 2024? The current political stalemate is causing an increasing divergence between the employment laws in Great Britain and Northern Ireland. That said, the post-Brexit reform agenda impacts Northern Ireland and holiday pay litigation will keep many busy following the landmark Agnew decision. Here’s our summary of what to expect in employment law in 2024.
The return of the Executive and Assembly in Northern Ireland would be welcome from an employment perspective to stem the tide of increasing divergence between the employment laws in Great Britain (GB) and Northern Ireland (NI). In this article, we look at what’s changing, the increasing divergence, some key cases to watch out for and flag potential changes on the horizon with a Labour government.
What’s happening with retained EU law in NI from 1 January?
One of the most important developments in 2023 related to the arrangements put in place to increase the pace of repealing, restating or replacing EU laws which were retained by the UK when it exited the EU on 31 December 2020.
The UK government’s controversial Retained EU Law (Revocation and Reform) Act finally passed in June 2023 after being watered down in the House of Lords where the ‘sunset clause’ (which would have automatically deleted EU-based laws) was removed. Effectively, the proposed ‘bonfire’ of EU laws became a ‘campfire’ of EU laws.
As the Act ended the “supremacy” and “general principles” of EU law on 31 December 2023, the UK government recently took steps to write many existing EU laws into new regulations. Otherwise, these EU laws would have disappeared from 1 January 2024, when supremacy of EU law ended. Some of these changes apply in Northern Ireland (NI), while some do not, creating further divergence between employment laws in GB and NI.
- New GB regulations have been put in place relating to what payments should be included in holiday pay, rules about carrying forward holiday and rules about carrying forward accrued holiday missed due to sickness or maternity leave.
- These holiday changes have been replicated in NI, following regulations recently introduced that came into force on 1 January 2024. However, an important difference in NI is that the holiday pay reference period has been maintained as 12 weeks, as opposed to the 52 weeks applicable in GB.
- In GB, new draft regulations amending the Equality Act 2010 were put in place to ensure that discrimination protections derived from EU law will be preserved. These changes do not apply in NI. However, given the special arrangements put in place in NI after Brexit under the Windsor Framework, there should be no diminution of EU equality and anti-discrimination legislation in place in NI and general principles of EU law, such as direct effect, as well as the doctrine of supremacy, will continue to apply in this area.
- In GB, the government also started to use its new powers to reform EU laws. For part-year or irregular hours workers this includes rolled-up holiday pay being allowed and a new holiday accrual system. There are also modest reforms to TUPE consultation obligations and record keeping obligations. These changes do not apply in NI where, for example, rolled-up holiday pay remains unlawful.
Otherwise, from 1 January 2024, we’re in a new legal regime with EU law no longer reigning supreme and EU-based caselaw no longer being the reliable authority it once was. We’ll likely see previously settled issues being re-litigated in 2024.
What’s happening with holiday pay claims in NI?
One of the biggest cases of 2023 was the long-awaited Supreme Court decision in the case of Chief Constable of the Police Service of Northern Ireland v Agnew, which hit the headlines in October 2023.
This decision, which applies across the UK, put holiday pay back in the spotlight and potentially increases the financial exposure for employers who have not calculated holiday pay correctly. It is likely to cost the Police Service of Northern Ireland £30-40 million as back pay for holiday pay claims and is likely to have significant implications for employers in NI and GB.
Employers in GB are in a better position, however, because there’s a two-year limit on how far back holiday pay claims can go. This isn’t in place in NI meaning that holiday pay liability can potentially date back to 1998 when the Working Time Regulations were introduced, or back to the date on which employees commenced employment, whichever is later.
Employers, practitioners, the Tribunal and conciliation services will certainly be busy in 2024 dealing with case management and hearings for the tens of thousands of holiday pay claims in the Tribunal system, which had been put on hold pending the Agnew decision.
What’s happening with diversity, equity and inclusion in NI?
This is largely a case of what’s not happening in NI in relation to diversity, equity and inclusion (DEI) due to the political stalemate.
This is in contrast to the activity in GB, where a significant development is the series of reforms that have been passed by way of private members bills, including new rights to carer’s leave, neonatal leave, the introduction of new flexible working rights and the extension of redundancy protection to pregnant employees and those who have returned from family leave.
The carers and neonatal leave provisions are intended to extend to NI. However, as employment law is devolved to NI, it will be up to the NI Assembly to decide whether similar provisions should apply in NI. With the Assembly not sitting, there are currently no plans for similar provisions.
Various other DEI initiatives in NI are on hold pending the return of government. Specifically:
- Legislation providing for gender pay reporting is in place in NI but hasn’t yet been brought into force. Even if the Assembly is restored to progress this, some employers may be out of scope assuming that the requirement will apply to employers with 250 or more employees, as is the case in GB and not extend to employers with 50 or more employees, which is a 2025 requirement in the Republic of Ireland. Employers who are in scope should note that when the requirement does apply in NI, they will be required to carry out disability and ethnicity pay reporting, as well as gender pay reporting. For more detail, see gender pay gap reporting in NI.
- Employees in NI who are victims of domestic abuse will be entitled to 10 days’ paid leave each year to deal with issues relating to the abuse. This is a ‘day one’ right meaning that no minimum period of service for qualification is required. This right is not yet effective (employers do not currently have to provide this leave) as the commencement date of the new right remains to be confirmed. Regulations are also expected, which will set out details of how the leave will work. Employers can, however, take steps within their businesses to prepare for this by creating an environment where employees feel they can disclose that they are experiencing domestic violence. For more detail, see domestic abuse leave introduced in NI.
Looking further down the track:
- The NI Executive is reviewing the racial equality legislation to see if it meets the needs of minority ethnic communities in NI and offers them the best protections from racism and discrimination in the environments in which they live and work. The consultation on this closed in June 2023.
- Following a public consultation and agreement on subsequent regulations, the current parental bereavement rights in NI (which, since April 2022, entitle eligible working parents who lose a child under the age of 18 to two weeks’ paid bereavement leave) are to be extended to include working parents who suffer the loss of a child through miscarriage. It is also proposed that working parents will become entitled to all rights from day one of their employment. Currently, parental bereavement pay is only available to employees who have been continuously employed with their employer for 26 weeks prior to the death of the child. The miscarriage and period of eligibility changes must apply no later than 2026. For more detail, see parental bereavement leave introduced in NI.
What else is happening?
Before it was dissolved, draft legislation was introduced in the Assembly providing enhanced protection for zero-hours workers (ZHWs) – these are workers on a contract where there is no guarantee that they will be given any work. The aim of the draft legislation is to provide a less precarious working environment for ZHWs. One of the key provisions is the banning of exclusivity clauses (terms in a contract which prevent ZHWs taking on other work). While the progress of the legislation depends on the Assembly being restored, it is one for employers with ZHWs to keep an eye on. For more detail see consultation on banded hours contacts and enhanced rights for zero-hour workers in NI.
Previously, the recruitment of teachers in NI was exempt from legislation prohibiting religious discrimination. Practically, this meant it was not unlawful for schools to discriminate against someone in the recruitment process on the basis of their religious belief. This exception was repealed in May 2022. The change is to be effective by May 2024, unless it is brought into force earlier.
At some point during 2024, the government is expected to pass its Data Protection and Digital Information Bill, which aims to maintain data protection adequacy with the EU while relaxing a few areas that may benefit employers, including a less expansive definition of personal data and a new ability to ignore vexatious or excessive data subject access requests.
National Living Wage and other rises
In April 2024, the National Living Wage will jump to £11.44 per hour (up from £10.42). This will narrow the gap between the legal minimum and the so-called ‘real’ living wage, namely what people really need to live on, taking account of the cost of living. The Living Wage Foundation has set the ‘real’ living wage outside London at £12 per hour.
The current rates for the National Living Wage and the National Minimum Wage are set out here.
Statutory sick pay is expected to go up to £116.75 in April (from the current rate of £109.40) and the weekly prescribed rate of statutory maternity pay (and pay for other similar types of leave) is expected to be £184.03 (up from £172.48).
The increase in the weekly pay rate used for statutory redundancy payments and other purposes and the 2024 revised basic and unfair dismissal amounts have not yet been announced.
General election in 2024?
With the next UK general election widely expected in Autumn 2024, a Labour party general election victory looks like a probability. The party is promising reforms to the employment landscape of a greater magnitude than, arguably, any time in the last 40 years.
To keep you ahead of the curve, we’ve written about Ms Rayner’s speech and some of the party’s wide-ranging proposed reforms to workplace rights. Headline proposals include:
- a right not to be unfairly dismissed from the first day of employment (scrapping the current two year (in GB) qualifying period);
- a move to a simple two-part framework for employment status (abolishing the three categories we have now);
- a ban on zero-hours contracts,
- strengthened trade union rights including a right of entry to workplaces;
- further strengthening of harassment laws; and
- the introduction of ethnicity and disability pay gap reporting.
We are unlikely to see any of this implemented in 2024, but NI employers (particularly those with employees in GB) will want to start preparing as soon as Labour’s final proposals are published in its election manifesto.
Cases to look out for in 2024
Keeping an eye on what’s happening in GB, some key cases employers should watch out for are as follows:
- Manjang v Uber Eats – on facial recognition software. Is it race discrimination to use facial recognition software to verify the identity of platform workers? This is a high-profile and union-backed claim currently going through the employment tribunal process.
- Mercer - on strikes. What can employers do in response to strikes apart from deduct pay for strike days? What measures short of dismissal are legitimate? The Supreme Court heard this case in December 2023 and a ruling is expected next year.
- Bathgate v Technip – on settlement agreements. Can you negotiate a deal with an employee to settle a future claim which hasn’t arisen yet? This case was heard by the Inner House of the Scottish Court of Session in November, and a ruling is expected next year.
What’s happening in GB employment law in 2024?
A lot is happening in GB - here’s our article about employment law reforms in GB.
Also, for employers with operations across GB, NI and the Republic Ireland our Comparative Table comparing the position on 30 employment law topics, may also be helpful.
In summary – a year of divergence
The key takeaway for 2024 is the on-going and increasing divergence between employment laws in GB and NI. While it remains more or less status quo for NI employers, UK employers, with operations in NI, should be increasingly mindful of the differences.
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