Do you remember the craze that swept the nation several years ago involving seemingly random patterns which if you squinted would result in a “magic eye” picture revealing itself? Well employment law in Northern Ireland is something similar, in that the picture should become clearer (with time, as opposed to squinting).

With the closure of our large Employment Law Review consultation process in early November and with around forty substantive responses received by the Department for Employment and Learning the scene is set for parts of the picture to come into focus so that we have an idea of what is in store.

The variety of consultation mechanisms used regarding the review ensured that responses were often more informed and perhaps less polarised than would have previously been imagined.

Broken into its constituent parts the employment law review makes interesting reading as many of the reforms have come into effect in GB already or are due early in 2014 and there is an overwhelming temptation to stand on the sidelines and watch what happens in GB and learn lessons accordingly.

There is little doubt that HR practitioners and employment lawyers alike have core areas of interest that mean their focus will be on a particular component of the proposed reform rather than the collective nature of the reforms per se. The natural tendency to view reforms through the prism of an employment law risk register dictates that certain reforms will be categorised and prioritised as a high, medium or low risk. These will either be eliminated, tolerated or managed, given the implications for your own or a client's organisation.

Our Best Guesses

In Northern Ireland practitioners tend to be a pragmatic bunch, so each subject area will have a tailored approach which takes a look at things such as likelihood, practicability, impact and questions. It is with these three headings in mind that we look at the key issues discussed in the employment law review to see what might happen and what the practical ramifications might be. We hasten to add that we have no 'insider information' and the following is our best guesswork based on the consultation meetings and discussions we held or helped organise up to our annual reviews of employment law in November:

Unfair dismissal qualification period
You may well adopt the approach that increasing it or leaving it makes little or no difference because your organisation knows well in advance of a year whether or not an employee is going to work out and you therefore have time to take lawful and appropriate action in advance. Legislating on the basis of perceived economic stimulus is not a good enough policy basis for reform. Very few Legal-Island customers were in favour of a change. Our guess is the unfair dismissal qualifying period will remain at one year.

Amending the collective redundancy consultation periods
Aligning NI to GB in this context may have merit beyond the simple mantra "it's easier if it's all the same". But aligning with GB's 45 days minimum consultation period for collective redundancies over 100 in a 30 day period belies the other issues that cause concern over collective redundancy consultation, such as the fluidity of the case law in this area and the lack of directive guidance material to assist in devising good employment/consultation practices. Besides, the minimum period is 30 days in the Republic of Ireland. Our guess is a reduction in minimum consultation periods but new guidance on what constitutes meaningful consultation will be the result.

Reforming the Public Interest Disclosure (Whistle-Blowing) legislation
The reforms in GB seem, in part, to be strangely counter-intuitive such as – removing the requirement for disclosures to be made in good faith, and having an ill-defined notion of what is in the public interest. To this extent satellite litigation is almost a given and would be worth monitoring. Our guess is we'll get some, but not all, of the GB reforms.

Early Conciliation
The notion of the requirement for consideration of early conciliation (mandatory initial routing of tribunal claims through the LRA) with a provision for “stopping the clock” regarding time limits, will probably be met with little resistance. However, questions remain around the detail of things such as impact on grievance procedures or award adjustment and so on. Even the LRC in Dublin is adopting a version of early conciliation - a certainty in NI.

Neutral assessment
The idea of adding another component to the already burgeoning ADR menu may prove a layer too far for some practitioners. No-one at our sessions saw any merit in confusing matters or adding another avenue of ADR that isn't required in the statutory system. Questions of detail remain. For example, whether the system could be abused by 'going through the motions' of conciliation to get to neutral assessment in order to better realise a negotiating position in advance of arbitration or litigation. We doubt it will be adopted or used often, if it is adopted.

Protected conversations (inadmissible negotiations)
Once hailed as the panacea for all difficult conversations that could land you in tribunal, the spectre of impracticality, relationship deterioration and inevitable satellite litigation has meant that this once celebrated concept has been exposed as flawed, dangerous and generally unnecessary. Unlikely to be adopted in NI.

Other Issues
The other reforms proposed under the NI employment law review also align with on-going reforms in GB such as:

Reviewing the tribunal rules which will see the Underhill recommendations in GB providing a pathway for potential rule reforms in NI where applicable. We reckon we will adopt the ones that suit.

In addition reforms to selected pieces of legislation making them less bureaucratic and more user-friendly are welcome, despite the fact the case law may supersede them in areas such as working time. We will see amendments to Working Time Regulations. Surely, the GB and NI governments can't put off the impact of the Stringer, Shultz-Hoff, Pareda etc decisions forever?

In relation to timescales there is as yet little clarity about when in 2014 changes in NI may occur and as such we can only look to GB for guidance. For example, TUPE reform in GB will be introduced on 31 January 2014 and the extension to all employees of the right to request flexible working will be April 2014. Most of our customers seemed in favour of alignment with GB in these areas.

Whether there will be a return to NI synchronising most changes with the GB common commencement dates of 6th April and 1st October remains to be seen. We think not - employment laws in NI have to go through the Assembly process.

Pre-empting apart, the practical reality is that we will have to wait and see what the responses to the DEL Consultation on employment law reform were and how policy direction is formed on the back of said responses.

There is much to be said for the "let's see what happens in GB and learn from their mistakes" school of thought, regardless of how lazy or distasteful that may seem, given that there are so many unknowns associated with the volume of reforms.

You will find the latest version of our comparative NI/GB employment law reform table here. Please destroy previous copies and use this one dated 6.1.14:
http://bit.ly/XGF5za