What might we expect in 2011 in the employment field? An increase in home working and tele-conferencing to get around the snow and ice travel problems? Perhaps - it makes sense now but will be driven by business needs; not legislation. Certainly, a survey by Orange has revealed that 74% of SMEs are considering or plan to introduce flexible working options in 2011. More about that in this Friday's weekly review email.

However, we can expect certain changes because we know legislation is planned or the government has indicated change is on its way.

Slow Down
The pace of legislative reform in the field of employment law is due to slow down in 2011 as there is no longer a lengthy list of European derived material eagerly waiting to be transposed into domestic legislation. Government sound-bites such as “an end to gold plating” and a “one in, one out” policy for any new employment law, herald a new era based upon the premise that the EU well is dry and that we all have enough to be getting on with on the domestic front.

NI goes it Alone
In Northern Ireland 2011 we will, if all goes according to plan, see the Employment (Northern Ireland) Act brought into operation in April. This Act will see the much-vaunted repeal of the statutory grievance procedure, a new Labour Relations Agency Code of Practice on Grievances, Discipline and Dismissal, the abolition of the fixed periods (7 weeks/13 weeks) of conciliation, the new pre-claim conciliation system being brought into operation and various changes to the powers of the Industrial Tribunal, and possibly a new right to request time off to train.

The Act is still in the form of a Bill at this stage and is due to go to the Consideration stage at the Assembly any day now and it currently represents the big thing on practitioners to do list early in 2011 in terms of policy tweaks, Code familiarisation, protocols on handling simultaneously lodged formal grievances and Industrial Tribunal claim forms, availing of pre-claim conciliation, making provision for statutory time off to train requests and so on. The Act in its original guise can be viewed here:
http://bit.ly/hGinZk

Blacklisting and Time off to Train
Because employment law is technically a devolved matter there are other matters which have been waiting in the wings in Northern Ireland but which have been provided for in GB, such as the right to request time off to train based on employer size qualification criteria (i.e. an employer with 250 or more employees), and provisions to prevent trade union member blacklisting.

These are two examples of where Northern Ireland may not simply engage in parity based sing-along, given that there may be reasons why such matters will not be legislated for. Said reasons could include the composition of the NI economy, the lack of real evidence of trade union blacklisting in the Northern Ireland jurisdiction or, if all else fails, the recession.

Links regarding trade union blacklisting:
http://bit.ly/fobYru

http://bit.ly/h0Lhna

Links regarding time off to train:
http://bit.ly/ftAN6w

http://bit.ly/fLSS7e

In October 2010 in Northern Ireland provisions where put in place for administration of the pending right to additional paternity leave and pay. This right will generally become exercisable from April 2011 and eight new statutory rules have been implemented to allow, for example, for the father to swap leave with the mother, upon her returning to her employer, from week 20 of ordinary maternity leave until week 39 and thus taking it as additional paternity leave at the same rate of pay as the current rate of statutory maternity pay.
Links to Additional Paternity leave material
http://bit.ly/gSbdlJ

Compensation limits
Old perennials are always on the agenda and recently GB announced changes in employment-related compensation rates which are due to come into effect there on 1 February. We normally follow suit here in Northern Ireland simultaneously or within a very short period of time.

Key figures to look out for will be the increase in the cap on a week's wage for the purpose of statutory redundancy pay / basic unfair dismissal from £380 to £400, guaranteed pay increasing from £21.20 to £22.20, and the maximum compensatory award for unfair dismissal increasing from £65,300 to £68,400.

Similarly in April we should see statutory maternity pay rise from £124.88 to £128.73 and statutory sick pay rise from £79.15 to 81.60.

Agency Workers and Retirement
On a UK-wide note the two bumper issues for 2011 are most definitely Agency Workers and the phasing out of the national Default Retirement Age. These are examples of inherited works in progress for the coalition government and the wheels of legislative reform were well in motion prior to it coming to power in summer 2010.

It is no exaggeration to say that these issues represent the biggest challenge to HR practitioners in 2011 as it will henceforth redefine their Human Resource planning strategies. Being able to objectively justify a “challenged” retirement or the use of stop-gap agency staff which unexpectedly lasts beyond three months are typical of the common or garden variety of issues likely to arise.

Agency workers and, more recently, the proposed scrapping of the DRA are exercising the minds of bodies (if you will pardon the pun) such as the CBI and the EEF and recently both called for the phasing out of the DRA to be postponed by a year so that its members could be clear on the legal ramifications of retaining a contractual retirement age and what would constitute objective justification permitting such retirement ages as a proportionate means of achieving a legitimate aim.

CBI views:
http://bit.ly/fcrAZd

EEF views:
http://bit.ly/hwyRH3

National Minimum Wage
We reported on 3 December 2010 that the Cordant Group Plc was seeking to judicially review changes to the NMW legislation. The case was heard at the end of the year and the planned changes will go ahead.

In the responses document in relation to consultation, the Government announced its intention to amend the National Minimum Wage Regulations 1999 in order that payments made by an employer to an employee for travel expenses to a temporary workplace, and associated subsistence expenses, which are eligible for tax relief, do not count as pay for National Minimum Wage purposes. This was an exemption that impacted on many temporary contract workers. Given that Cordant has lost the review and has not been given leave to appeal, the change applies from 1 January 2011, as intended. More in this Friday's review email.

Maternity Rights and Gold-plating of EU Directives
Late in 2010 practitioners began to wonder what was going to come out of Europe in relation to proposed changes to the Pregnant Workers Directive. The European Parliament had proposed changes such as: 20 weeks maternity leave on full pay, new provisions regarding time off to breast feed and new rest protocols. However, said proposals were rejected by the Council of Europe in late December 2010 and the issue has been put on the back burner for a while.
http://bit.ly/eWvWkD

Although the above proposal was effectively stalled at a European level the coalition government has attempted to ensure that “gold plating” of European law no longer occurs when it is transposed into domestic legislation. The key elements of the principles are:

* European directives will be directly copied into UK law, except where it would adversely affect UK interests, e.g. by putting UK businesses at a competitive disadvantage
* A statutory duty on ministers to review domestic legislation implementing European directives every five years. The process would involve a consultation to allow businesses to use their practical experience to influence any necessary improvements.
* Early transposition of EU regulations will be avoided to ensure that British businesses are not put at a competitive disadvantage.
* Work on the implementation of EU directives will start immediately after agreement in Brussels. This will enable businesses to have a greater opportunity to influence the Government's approach to implementation.
http://bit.ly/hnE8h4

The Bribery Act
Back on the domestic front, practitioners should be aware of the potential vicarious liability issues that may arise under the Bribery Act, which comes into effect in April and extends to Northern Ireland:
http://bit.ly/i3uRur

Employers would be wise to revisit their anti-bribery protocols to ensure they can demonstrate that they have adequate anti-bribery policies, procedures and protocols in place if they are to successfully defend a case which could result in an unlimited fine or ten years imprisonment. The law applies to those who offer and those who accept bribes:
http://bit.ly/hCBgVx

Flexible Working
Back to where we started. Other changes that could conceivably be on the cards for Northern Ireland include an amendment to flexible working requests from eligible employees by increasing the age of children, for whom the employees have caring responsibilities for, to up to the age of eighteen. This already seems set to happen in GB, but once again we will have to wait and see if it is going to be replicated here in Northern Ireland.

In the meantime, you might want to read the BIS article on the history of bank holidays:
http://bit.ly/hLIMmf