Christine Quinn from Legal Island and Seamus McGranaghan from O'Reilly Stewart solicitors will be joined by Mark McAllister of the Labour Relations Agency and discuss:

1. Strikes, rising costs and union busting  - you’d be forgiven for thinking we’ve jumped in a DeLorean and headed back to the 1980s when reading newspaper headlines at the minute – but it looks like we may be revving up for some serious strikes in the next few months. Seamus/Mark McAllister explains:

a. The current law on strikes including the similarities and differences between NI and England & Wales.
b. Why agency workers are currently banned from filling in for striking staff.
c. What changes the Westminster government are proposing.

2. According to the OECD, the UK now has the second highest childcare costs among leading economies.  And a TUC poll of working parents with pre-school children – published in March of this year – revealed that one in three (32%) spend more than a third of their wages on childcare.   With the summer holidays on the way parents, particularly mums, are in a catch-22 situation – they need childcare to work, but childcare is becoming prohibitively expensive.

So what other rights are available to them to help them ‘juggle’ during the holidays? Seamus takes us through the family-related rights open to workers and how to ensure your organisation is compliant. 

The recording

Transcript below:

Christine: Good morning, everybody, and welcome to Employment Law at 11, sponsored by MCS Group. So MCS help people find careers that match their skill sets perfectly as well as supporting employers to build high-performing businesses by connecting them with the most talented candidates in the market. If you're interested in finding out how MCS can help, you head to their website, www.mcsgroup.jobs.

So you're very welcome this morning. My name is Christine Quinn. I am part of the Knowledge Team here at Legal-Island. I'm joined as usual today by Seamus McGranaghan, employment lawyer over at O'Reilly Stewart Solicitors, and I'm delighted to say we have a cameo performance this morning from Mark McAllister of the Labour Relations Agency. Thanks so much for joining us.

So Seamus and Mark are both speakers at Legal-Island's Annual Review of Employment Law this year on 16 and 17 of November. So do stay tuned, and we'll be finding out a bit more at the end of the webinar about what they're going to be discussing.

In today's webinar, we're talking about strikes, rising costs, and union-busting with Mark. So you'd be forgiven for thinking we've jumped into DeLorean and we're back in the 1980s with the newspaper headlines. We might be ramping up for some strikes in the next few months.

So Mark will be explaining the current law on that, some similarities and differences between ourselves and England and Wales, and some of the proposals that the Westminster government have for dealing with the strikes.

And on the other hand, Seamus will be looking at the rising cost of childcare as we're coming into the school summer holidays. An OECD poll showed that we have some of the highest childcare costs among the leading economies, and a TUC poll said that working parents with preschool children revealed that one in three spent more than a third of their wages in childcare.

And I can certainly testify to that. My youngest is going into P1 in September. We feel like we've won the lottery not paying for private childcare. But unfortunately, we're just putting it all into our heating bill, so we're not really seeing the difference.

So the summer holidays are on the way. How can working parents start to juggle their childcare needs, kids at home? Seamus is going to be taking us through some of those rights and how to keep your organisation compliant.

Poll Results

So if we get you guys involved first and foremost, we've got a few polls for you if you could do some voting. So the first poll there, Katie, if you can pop that up. "Do you contribute to or subsidise childcare in your organisation?" 

So I don't think there's a big surprise there. Eighty-six per cent of the participants there are saying that they don't contribute to or subsidise childcare. Seamus, is that what you were expecting?

Seamus:Yeah, Christine, absolutely. I suspect with the other 14% that there are various maybe schemes that the employer is assisting with that they used to be able to and can continue in some circumstances, but not any longer. But yeah, fairly reflective there.

 I do think that childcare is and has been a huge issue, and I think that we've adopted and adapted probably better since the pandemic, if I think back to the times of the lockdowns and parents working from home while children were also at home and the difficulties that that created as well. But I think that people have got used to that to an extent.

And I think that, as well, probably the flexibility that employers have shown since the pandemic has probably reduced that aspect of subsidising childcare. And in actual fact, some employers might look at the fact that they are subsidising childcare, maybe not financially, but maybe through different schemes that they have with working, whether it's flexible working or working from a hybrid basis.

Christine: Yeah, there's kind of an unusual tension going on at the minute, isn't there? COVID has had some positive results for employees, but then there are other employers that are kind of reeling that back. So there's a bit of a weird tension at the minute.

If you can pop up the next poll there, Katie. Our next one is "Do you have term-time working in your organisation?" So do you allow people a bit more flexibility during the summer?

I think I might end up being surprised by this result just looking at people's voting. Okay. 

So it's pretty even-steven there. I have to say that I'm a wee bit surprised by that. What do you think, Seamus? Are you?

Seamus: Yeah, I'm surprised that it's so equally split, but I suppose it just depends as well, Christine, on the types of businesses that the listeners are coming from and the types of organisation that they have. There may be some businesses that can accommodate term-time working and there will be other businesses that just can't do it because of the nature of the business that they're working in.

So the likes of hospitality and if you're factory based and things like that, and manufacturing, it might be difficult to facilitate that term-time working, where more office-based roles maybe could deal with that somewhat better than other businesses.

So there's probably a bit of a mix of it in that, but certainly, I would be familiar with circumstances around just from clients and things like that where there is a bit of a relaxation that happens during the summer months, or even sometimes over the smaller, short terms as well at Halloween and things like that, where holidays would be used or if they're accruing and things like that as well. They may be permitted to take more holidays in a larger chunk during the summer to accommodate childcare

Christine: Yeah. So we've obviously got a lot of very flexible employers on board today, which is what I like to hear.

So, "Legally, can you deduct wages from striking workers?" Let's see what you think on this. So A, "Yes, of course, you can. They don't work, they don't get paid." Or B, "No, it's their legal right to strike and be paid in full." This is just to get a bit of an idea about where you're at with your understanding on striking workers.

 Mark. Are that 70% correct?

Mark: The short answer to that question, Christine, is it really depends. When you're in industrial action and the different forms of industrial action that they take, sometimes you will be in a situation where there's a concept known as partial performance of the contract, which we're going to talk about a wee bit later on.

When you're engaged in industrial action, that means that there are aspects of the pay that may be deducted. If it's a full out-and-out strike, then there's no entitlement to pay as such, although we see many trade unions will have a strike fund in order to soften the blow in many instances. So we'll talk a wee bit about that later on.

Christine:Brilliant. Thanks. Thanks for that, Mark. So we're going to kick off with Mark, but as we go along, please drop in any questions you have, and I'll put them to Mark and Seamus at the appropriate time.

So, Mark, we've got Kate Bush in the charts, we've got "Top Gun" in the cinemas, we've got the strikes striking everybody, everyone is out in strike, we've got a Tory government in Westminster threatening union-busting legislation. So what year is it again? Did the last 40 years just get wiped out? What's going on?

Strikes and Industrial Action

Mark: Yeah, you would be forgiven to think you were transported back into the 1970s. There is an incredible amount of industrial action going on throughout the UK at the minute, and especially in Northern Ireland. In my 23 years or so working with the Labour Relations Agency, I've never seen it as busy. It really does harken back the days of the '70s and '80s.

And there've been lots of legal developments since that in regard to the law and trade unions. And we're in position now where the law in Northern Ireland does differ significantly from that in GB and is potentially going to differ even further with regard to those developments that we're going to talk about in a second.

Christine: So what is the current law on strikes in Northern Ireland? Can you give us a wee synopsis?

Mark: Sure. In Northern Ireland, the collective labour laws it's referred to and the law that covers trade unions and strikes is found in around six pieces of legislation. From a practitioner's perspective, the most important piece of legislation that you need to be aware of will be the Industrial Relations (Northern Ireland) Order 1992, the Trade Union and Labour Relations Order 1995, the Employment Rights Order 1996, the Employment Relations (Northern Ireland) Order 1999, the Employment (Northern Ireland) Order 2003 and the Employment Relations (Northern Ireland) Order 2004. So it's a bit of a patchwork quilt, Christine, of that.

From a practitioner's point of view, here's an easy cheat. Go to the Labour Relations Agency's website and pump in "Industrial Relations Order 1992". And then you go to the actual legislative link and go to the explanatory notes, which is the cheat. And you will find, for example, the definition in the legislation of a trade dispute.

The important thing to remember about the law on industrial action is it's referred to sometimes as the golden formula or the golden triangle. The three component parts: There has to be a trade dispute as legally defined in the 1992 order, there has to be a properly conducted ballot, and there has to be proper notice.

So practitioners should have a sound working knowledge of the basis of the legislation, which is really about the '92 order and the 1995 order, the Trade Union and Labour Relations Order.

Then get a copy of the Department for Employment and Learning as was, DEL, which is now the Department of the Economy. They have their statutory code of practice on notice and ballots, and really that's your guiding framework for it.

So you must have the three component parts in place because there is no right to strike. The legislation is designed to provide immunities through the trade union and a right to be protected from unlawful, unfair dismissal in the context of striking, but there is no right to strike as such. So that's where you'll find in Northern Ireland the core legal basis for industrial action.

It is a complicated area, but it's what we call hurdle-based. So you have to jump the hurdles in order to ensure that you've got the indemnity and you've got the procedural correctness with regard to the notice and the ballot.

It's different in GB. In GB, in 2014, a piece of legislation was passed called The Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Act. Rolls off the tongue very, very gently.

And it was really about union housekeeping, about their membership lists, and giving lists then to the certification officer and having registered audits. It actually did the trade unions a bit of a favour because it got their housekeeping in order with regard to ballots in GB.

And then two years later, The Trade Union Act of 2016 came into effect. And that effectively was a game changer with regard to thresholds for turnout. So, under that act, there's an increased ballot threshold. You need a 50% turnout requirement.

Christine: And that's not the case here?

Mark: That's not the case here. The Trade Union Act 2016, there are only small technical parts that related to Northern Ireland, but the core component parts in terms of the increased ballot threshold, which is the main part of the act, doesn't apply in Northern Ireland.

And that is a big, big difference because it theoretically is easier for a trade union to take industrial election in Northern Ireland compared to GB.

Christine: So they just have to get a majority of who's there on the day voting?

Mark: Yes.

Christine: To push through? Wow.

Mark: That's it. The other complication in GB is that if it's an important public service, there is a second hurdle attached to it. So not only is it 50% of the members have to have voted, but at least 40% of those entitled to vote must have voted in favour of the action as well. And this is interesting given the context that we're currently in. That covers health, education, fire, transport, border security, and, rather bizarrely, the decommissioning of nuclear installations.

Christine: I would like to see them getting in an agency worker to cover for that. Do you know what I mean?

Mark: Absolutely. Yes, indeed.

Christine: So Grant Shapps is proposing, and it's taken another step this week towards happening in GB, that they'll lift the ban on agency workers being allowed to fill in for strikers.

When I first read it, I thought this is fairly draconian and quite dramatic. But then when you think about some of the people that are out on strike, you can't really get in an untrained agency worker to drive a train. You can't get them in to do air traffic control. So is the proposal as far-reaching as it appears?

Mark: It is, because fundamentally it applies not simply to the six areas. It's across the board of change.

This is a proposal that even the Thatcher Administration wasn't prepared to go down, primarily because it completely neuters the effect of industrial action, and that would've caused even more industrial turmoil. If Thatcher had have proposed that on the cusp of the miners strike, every other trade union in the UK would've been out on industrial action saying, "This is completely unacceptable".

So in the last couple of weeks, in the last week, you've already had the head of the Recruitment & Employment Confederation saying this is not going to work, because effectively you will have employment agencies and employment businesses . . . They're liable under the legislation. That's the important part. They are liable and it's a criminal offence if they provide this agency cover for workers who are out on industrial action.

And there are some arguments that employers may be liable for aiding and abetting in this context. They have already said, "We want no part of this. We don't want to have a reputation of essentially providing strike breakers". So, at a moral level, there's an issue.

And right over to the other side, there are now question marks hanging over whether or not it's an infringement of the ILO, the International Labour Organization's Convention 87. There's a question mark whether it fundamentally undermines aspects of the trading agreement under the Brexit proposals that's known as the TCA, the Trade and Cooperation Agreement, because effectively you're providing an uneven playing field.

If you have the UK as a country that effectively says, "Well, look, we have completely neutered our law on industrial action because we can provide agency cover to do this", that provides an unfair advantage.

And this is real anorak stuff, Christine. Theoretically, that could be a breach of Article 387 of the Trade and Cooperation Agreement, the ILO agreement, etc. So it is not straightforward by any means.

And in Northern Ireland because we have devolved employment law, it's Regulation 7 of the Conduct of Employment Agencies and Employment Business Regulations of Northern Ireland 2005, but that's not being proposed to be changed because it's GB.

So we've had the ban on agency workers covering for striking workers in Northern Ireland from around 1981. It existed a wee bit earlier in GB. But there's no proposal anyway that we've heard of to extend it to Northern Ireland. So if it does come into effect, which I'm doubtful about to be honest, I don't see it being extended to Northern Ireland.

Christine: I was reading an article this morning that said that David Cameron's government actually made noises about it back in 2015.

Mark: They did.

Christine: And the likes of Amnesty International and stuff weighed in and said, "This is a fundamental breach of people's rights".

Mark: Absolutely. You're into the realms of Article 11 of the Human Rights Act legislation. And you can see the battle that's going on with regard to the Bill of Rights across the water at the minute. So there is definitely an underpinning argument around human rights and Article 11.

But even more interestingly, the proposals with regard to agency workers actually came around in 2014 when a shaggy-haired blonde London mayor had a real ding-dong battle with the former, who's now deceased, head of the RMT, Mick Lynch's predecessor, who was Bob Crow. Sixteen proposals from the Lord Mayor of London back in 2014, and around eight of them made it into The Trade Union Act 2016 that you currently see now.

So the history of what you're seeing unfolding now in the last two weeks began with Boris Johnson and Bob Crow of the RMT back in 2014.

Christine: They're playing the long game.

Mark: It's been a long time coming, and it's a very, very significant area of law. The cynic in me says I don't see it happening without a massive resistance from the trade union movement. And the trade unions do not need any more reasons to get annoyed about things.

One of the interesting things that I saw in the media this morning with regard to the ballot thresholds, for example, was The Communication Workers Union for the EE mobile phone network fell eight votes short of the 50% ballot threshold. So they can't go out on industrial action in EE for the CWU union. However, 9,000 call centre workers for BT and 30,000 Openreach workers have through the CWU reached their threshold and they're now going to engage in industrial action. So it's across the piece.

Christine: Yeah. And I was chatting to Seamus about. Basically, the time is ripe for unions to be recruiting. There's Coca-Cola bottling over in Wolverhampton. They had a bit of a trade dispute going on, and Unite the Union have got involved in that and they're saying, "Do you want us to represent you? Do you want our union in your workplace?" So I think that's going to start becoming more and more prevalent, isn't it? And even smaller businesses might feel that.

Mark: I think so. Mick Lynch has turned into a social media superstar, and he has dispatched politicians and journalists alike with consummate ease. People are looking around saying, "This guy is not a raving lunatic Trotskyite. He's actually he's making sense. And yeah, let's join a union".

Christine: He's an influencer now.

Mark: He is.

Christine: So, Mark, here in Northern Ireland the NASUWT began action short of strike in May. What does that actually mean? And what are the legal implications of being short of the strike?

Mark: Yeah, this is a very common form of industrial action. It's more common than strikes. Action short of strike could be anything from a go-slow to a work-to-rule. And they're very particular to the industry that the industrial action is happening in.

So in the context of teaching, for example, there are around 16 aspects of the action short of strike, which don't relate directly to teaching but can do with attending parent-teacher meetings or engaging with the education training inspector, etc.

And the NASUWT have made it very, very clear what aspects they're doing. They're performing their primary contractual duty, which is obviously the teaching of children, but their action short of strike involves around 16 areas.

And that provides a complication for an employer because it was announced, I saw on the media, that the employer was not going to accept this partial performance. And partial performance, as it says on the tin, is where you're doing a fair amount of your contract but not all of it.

Now, there is no legal obligation on an employer to accept partial performance, but if they make it clear to the trade union that they don't accept partial performance, then something has to happen.

If the employer continues to facilitate the working-to-rule or whatever it happens to be, then de facto they are accepting partial performance. So the difficulty from the employer's perspective is then what's the next move. And the next move could either be a lockout where the employer says, "Unless you're prepared to do all of your contract, we're not accepting this", and a lockout, which is really draconian, or there could be a reduction in wages to reflect the amount of noncompliance with their contract.

And herein lies the difficulty. The quantification of partial performance in terms of making a deduction, a fractional deduction, from the wage is incredibly difficult in a service type industry or in teaching.

So, for example, how do you quantify in any shape or form where someone isn't doing paperwork or someone isn't engaging in a meeting? Can you get to a situation where you can say, "We're now deducting 1/260th of your pay"? That's a fraction in case law. That fraction exists.

Christine: My goodness.

Mark: Yeah, 1/260th because you didn't attend this meeting, etc. So the practicalities of quantifying the non-performance parts of the contract are incredibly difficult. But more important than that, it makes a bad industrial relation scenario worse.

The difficulty we have now is . . . There was an announcement with regard to, "This may result". And whether that's followed through or not is really what will dictate the next course of play, because if the employer, as I say, effectively facilitates the on-going of the partial performance, then they have de facto accepted it. If they engage in trying to quantify the loss to the employer and the employer makes deductions from wages, that simply inflames. And so the question then is, "Does it go from action short of strike to full-out strike action?"

Christine: Is there a similar thing . . . So if an employee's contract has changed, I can say I'm working under protest. Can an employer flip that and say, "Well, I'm allowing you to work under protest"? Would that save them from that, or is that not possible?

Mark: I think the difficulty with working under protest is that what's written in paper and what happens in practice over a period of time can be two different things. 

Working under protest sounds really, really good, but the reality is there's a fair body of case law out there to say that you've exceeded to the changes or whatever it happens to be by virtue of by working that long.

 So working under protest sounds really good. It's not all it's cracked up to be, Christine.

Christine: Fair enough. So it sounds like actions short of strike is almost worse than someone just not turning up and picketing. It sounds much more complicated from the employee's perspective.

Mark: Yeah. I think it's very individual to different organisations, and trade unions obviously know what works well in terms of putting industrial pressure on the employer to get their demands met. So sometimes action short of strike is much more harmful than all-out walkout, because an all-out walkout for one day is probably more symbolic than it is effective  . . . Unless you're in the context of the rail industry, like the RMT, where you see that that has.

So, again, trade unions are clever enough to use their leverage and their muscle for where it'll have greatest . . . Because remember, industrial action is primarily about getting one side to concede a point around pay or on terms and conditions. And they're very, very individual. Obviously, when you see the RMT, when you drill down into the detail, it's not simply about pay, but it's about guarantees about compulsory redundancies and modernisation and then varied comments of the rail system.

So whilst it would be easy to say all of the disputes that we're currently seeing are about pay . . . Yes, they are, but scratch beneath the surface, there's more to them.

Christine: Yeah. That's brilliant, Mark. So, to sum up, do you think we're in for a winter of discontent? Do you think this is going to keep escalating? What do you reckon?

Mark: Christine, you're in a summer of discontent. The only thing that's going to change is the seasons.

Christine: So, by Christmas, we're all up the creek then? Is that what you're saying?

Mark:Well, the difficulty is your inflation rate is at 9.1%. It's going to go to double figures, probably about 11%, and you have a winter coming in and oil bills and fuel bills are going through the roof. It just is the perfect economic storm. And the summer of discontent that we're in . . . As I said, it's busier now than I've ever seen it now, July 2022. It's only going to get worse.

Christine: Yeah, brilliant. Thank you very much, Mark. Thanks very much for that.

                        We will move on to Seamus's session now.

The Rising Cost of Childcare

Childcare costs are always in my mind because they are absolutely extortionate. I think since 2010 a survey said they've gone up by the average of £2000 a year for working parents. So, really, it is a catch-22. We need to work because we enjoy work. We need to earn money. But we also need to pay for childcare, and you feel you're caught between the two.

So there are other options out there, aren't there, Seamus? I suppose we should kick off with are there any schemes out there to help with the cost of childcare?

Seamus: Well, there are schemes, Christine. I suppose what might be helpful, just kicking things off, I've come across an article that Clodagh Rice at the BBC had actually done in November 2021. And at that time, we probably weren't paying a huge amount of attention to this. But just taking from the very last point there made by Mark, there is this issue of rising costs. And it also looks like the childcare providers that are out there are also at present increasing their costs because they're having to heat, light, cook food. All the things that we're having to do at home are having to be done in the childcare provider as well.

So it's just interesting that back in November 2021, BBC were reporting here in Northern Ireland about concerns in relation to childcare. I know we hear about restaurants closing at the minute and things like that. This was reporting what some of the childcare providers were reporting because it just wasn't working out in terms of costs for them.

There is also a really up-to-date survey there that is done by the Employers for Childcare. A childcare survey said in 2021 that the average cost for a full-time childcare place in Northern Ireland was £170 per week and £186 per week for a day nursery and £166 a week for a child minder. So those are the sorts of figures. You're probably well aware of these things.

Christine: Too much, Seamus.

Seamus: No doubt there is. And there were variations in relation to that also. In County Antrim, the highest average was £174 a week. In Tyrone, it was £150 a week. So you can see variation across the board there. And the costs of that are no doubt going to just simply increase as well.

There are a number of schemes that are there and available at the minute. The main one is probably the Tax-Free Childcare scheme that we have in place. And it allows for eligible working families to claim 20% of their registered childcare costs up to a maximum of £2000 per year. If you have a child with a disability, that increases to £4,000 a year. So there is some differentiation made there.

And for a family to be eligible, just to cover off on that, both parents need to be working, or one person in the single household, if it's a single-parent family, can benefit from it as well. They need to be earning the minimum £152 pounds a week, which equates to the 16 hours per week on the national minimum wage. And it's a variation of between £152 a week and right up to £100,000 a year. So if you have two people with a combined income of £190,000 in the house per year, they can still benefit from the Tax-Free Childcare scheme.

In relation to that, we do have the Childcare Voucher Scheme that is now closed for new applicants, but it still is on-going. So if you were registered with the childcare scheme prior to October 2018, I think it was, then you can still benefit from that. And that's essentially a salary sacrifice scheme where you are sacrificing part of your salary that goes into your childcare, and you're saving on the costs in relation to that.

For others out there, the position in respect of Universal Credit, we've seen different variations and different titles of all of this. It's all very confusing. But bottom line is that you get a monthly payment for people that are in or out of work. And if you're working, your Universal Credit payment you can include an amount in that, and it covers up to 85% of your registered childcare costs.

So that is benefit for maybe lower-income families that are working through that process on the 16-hour contracts and things like that.

Just to mention the point that the Universal Credit is means tested. So it's not a one-size-fits-all, and it very much will depend on your circumstances that you have and number of children and things like that as well.

And the last main one is the working tax credits. We hear lots about it. And the working tax credit, again, change of name, now comes under Universal Credit, but it's money there that's provided to boost the income of working people who are on a low income. And it can include an element towards your registered childcare costs as well.

So those tend to be the main schemes that are there. And you do look at it taking a step back from it and think, "How much actual assistance is there in relation to parents?" It is difficult, and there's no doubt about that. And I can only see those costs increasing.

Christine: Yeah. I don't think I can get through a webinar ever without mentioning Pregnant Then Screwed. They are my favourite organisation and they talk about this all the time. They compare the different models of childcare provision in different countries. The Swedish model, Swedish people expect to pay high taxes, but they also expect excellent public services. My brother lives in Sweden and has children and the subsidised childcare there is outstanding, and it is for all.

So I think, in my mind, we need a complete rethink and overhaul and put Pregnant Then Screwed in charge of the government as far as I'm concerned. I love them. They can do no wrong in my mind.

But there are other options for parents to help juggle this school summer holiday. So what kind of family-friendly laws are out there to help us?

Seamus: Well, obviously, we're coming into the summer holidays. Children are going to be at home and parents can do their best in relation to trying to find summer schools and summer schemes and things like that, just even to keep children occupied. But there's no doubt it puts pressure on the family home whenever the children are out for the summer.

And it depends on what way the employer works. We saw the poll there in relation to term-time. Quite encouraged by that. But other things in relation to maybe allowing employees to block their holidays maybe for a longer period during the summer or look to amend their working hours, maybe a temporary variation over summer months and things like that.

In relation to leave itself, you have parental leave that is in place. We have maternity leave and we have paternity leave. Those are the sorts of leave ideas.

And then obviously, the more friendly ones that come along the lines of the flexible working applications that can be made or applications, again, for temporary variation of employment. We have definitely noticed an increase in the way that the legislation has moved. It's definitely moving more towards that family-friendly aspect.

And again, from my experience and just from some of the case law that we look at, the tribunals are definitely moving towards a place where you have a higher expectation on employers to facilitate leave for parents. So although you have the legislative provisions, definitely you have the aspect of the case law developing in that way.

And there's a case there, Dobson v North Cumbria 2021, that's an Employment Appeal Tribunal case. And essentially, what was coming out of that is that you have the Employment Appeal Tribunal noting that it's increasingly favouring and supporting employees who have childcare responsibilities. This is the reality that everyone is dealing with.

And there is a willingness to recognise the needs of parents at tribunal level. They said employers should have the same willingness to do that, and that failure to do so could result in possible discrimination claims.

I did a case of mine probably going back 10 years. In actual fact, it's probably more like 15 years. My poor memory. But I do remember I acted for a school in Northern Ireland in relation to the case. And there was an application we had for job share and for flexible working.

The vice president at the time, he's now the president of the tribunals, dealt with the case and made it very clear in that case that the expectation was that in this day and age, it takes a lot for an employer to be able to justify a refusal to not consider or not grant those applications for flexible working.

The obligation isn't on the employer to grant them. The obligation is to give them consideration. But I think as things have moved forward, the expectation of both maybe society and from a tribunal point of view and court point of view makes it a difficult argument.

And I have no doubt to say at the top of our discussions there that the ability to accommodate flexible working has no doubt come around and has been promoted and escalated through the pandemic as well. And just while Mark's here also, I always go back to Practical Guide to Hybrid Working.

Mark: Well done, Seamus. Good man.

Seamus: It's a valuable document and it does assist employers as much as it assists employees.

And I suppose the wider argument, Christine, might also be around . . . It's the aspect of there are huge difficulties in terms of recruitment and retention at the minute across the board, motivation of staff, keeping your staff happy, looking at those aspects of the employer's obligations even from a welfare basis to the employee. Not saying that the employer has to roll over in every single application, but the employer should be giving consideration to that really important aspect of an employee's happiness, their welfare, their ability to do the job. Are they going to have to go somewhere else and work somewhere else if their circumstances can't be facilitated? And I think definitely the pandemic has taken us down a path where we can see that it does bring us on that way.

And interesting enough, not to move to a different space at all, but we do see now that employers are putting pressure on employees to return back to the office. And that's the benefit, and why Labour Relations Agency have been promoting the Hybrid Working Guide so much, because there is an ability to get that compromise between the two parties that facilitates and helps both of them.

Christine: Yeah. You mentioned penalties for non-compliance could include a discrimination claim, but I always think it's fairly unusual. In the Republic of Ireland, we've got family status as a protected characteristic. That is not the case here. So, really, it's women that are protected in these flexible working requests gone wrong type cases, but men are really on a bit of a sticky wicket, aren't they? The law is not skewed to make everyone equal in the family at the moment, I suppose.

Seamus: Yeah. And certainly, a lot of the case law that you come across is based on the woman and the different types of less favourable treatment arising, because women tend to be more so the part-time workers. I'm not devaluing the work that's done in any respect at all. That's what the case law says, but that's just the circumstances of why it is. And when you look at doing your comparative surveys and things like that through discrimination cases, that will be one of the things that will come out.

But I suppose it's just the aspect as well that if you refuse a flexible working application and you haven't given it proper consideration . . . Now, the key thing would be when you get a flexible working application, genuinely go back and report back to the employee all of the considerations. You can take into account all of the business requirements and the resources and the costs and everything else.

But the other thing is you're going to have a disgruntled employee. You're going to have grievances. You're going to have an employee that's not motivated. It's factoring in all those different aspects. And then ultimately, if there's a breakdown in the relationship, you end up at a tribunal.

I was talking to a client during the week, and unfortunately having to give the advice back to say they've come through with an appeal letter on a flexible working application. And when I talked through it with the employer, mentally in their head, they couldn't see it working. And I said, "The difficulty here is that you haven't done anything to work through the practicalities of this. You haven't tried and tested it. There are lots of things that you could do, and it actually might work out if you just give it a bit more air time".

It just seemed to be the classic scenario. A decision was made, appeal has come through, panic came on. Just working through those aspects with the client as well, and highlighting the dangerous side and the potential litigation as well.  It all comes forward.

Christine: Brilliant. Thanks very much, Seamus. We do have a few questions, which one actually has come through for you, Mark.

What can an employer do if their organisation is not unionised, but employees are threatening strike action?

Mark: That's quite unusual. The legislation doesn't talk about unions per se. It talks about a concerted stoppage of work. I think the important thing to remember is in a vast majority of instances, it's about a trade union following the proper procedures.

The difficulty when you have people who are threatening to strike in a non-unionised environment is who takes responsibility for the concerted, if you like, stoppage of work in terms of the notice and in terms of the ballot? People need to be very, very clear about that, because whilst a lot of the legal framework around this is to do with trade unions and trade union immunity, the reality is it's a breach of the contract.

When you engage in industrial action, you're in breach of your contract, but there are protections based there for unfair dismissal in the context of protected industrial action for a set number of weeks.

The difficulty in a non-unionised environment is all about data administration around the process. So, in actual fact, what you're probably talking about is a form of wild cap action, which is potentially unlawful, unofficial industrial action. And the difficulty with unlawful, unofficial industrial action is that you can be fired on the spot and there's no recourse to unfair dismissal legislation.

So, back in the bad old days, when disputes across the water were going really brutal, it wasn't unheard of to have HR managers go out to the picket line in a wildcat strike and hand out P45s to people.

Christine: They were brave, weren't they?

Mark: And it was a different, perhaps less enlightened time, but this was the practicalities of it. And that's why, from a practitioner's perspective, you need to be very, very careful about making sure you know what the process and the procedures are.

 In a non-unionised environment, if people are threatening walkout, I don't think you'll probably get bogged down in the mechanics of the nuances of the strike law. It's about trying to get that industrial relations problem resolved before it results in a concerted stoppage of work and you're into it.

The employer is unlikely to have a bank of skilled staff ready to take people's places. So the organisation might have to pull the shutters down if that happens. So you're really transcending industrial action there. This is about the survival of the organisation in many instances.

 So I think the advice there would be get round the table and, first and foremost, contact the Labour Relations Agency and ask us to come in and help. And if I can spur a collective conciliator, which I must admit I'm having difficulty at the minute because of the amount of disputes that we're currently facing, we'll certainly help out. So if they pass on the details, Christine, to you, we'll see if we can help.

Christine: Yeah. So do drop me an email, Teresa, if you'd like me to put you in contact with the LRA there.

                        We've got a question for you, Seamus.

So, with the current recruitment difficulties, will tribunals look at saying no to a flexible working request a wee bit more favourably? So I suppose if you don't have quite as many bodies in the workplace, you can't be quite as flexible. Can you make that argument, do you think?

Seamus: Well, whenever you assess the application, you absolutely have to do it on the basis of where you're at in respect of your business. So your available resources are an important aspect.

If you're going to end up in a tribunal with that, I think that you're going to have to be clear about your evidence, as you would expect that the tribunal will want to see documentation setting out maybe where there has been a reduction in staff and even looking at what steps the employer has taken in terms of recruitment.

You can imagine a lot of those issues being relevant issues if it comes down to an argument by the employer that they just couldn't facilitate the application because of the available resources.

In essence, yes, I would agree that probably you could see the pendulum going slightly the other way at the minute, but again, you're not going to get off the hook just by simply saying it. You're going to have to be able to back it up. That should be form and part of your consideration process in any event.

Christine: So you need good paper trail in place.

A really good question has come in, which I think we might address and use as a poll in our next Employment Law at 11, about companies paying things . . . making additional payments, I suppose, is the best way of putting it for cost of living increase. So I think if I can hold on to that one, I think it would make a great poll question for the next time.

But thank you both very much. I would like to have a chat with you now about the Annual Review of Employment Law. So Mark and Seamus are both going to be attending. They'll be speaking for us again at the Annual Review on 16 and 17 of November.

So you guys are actually the first to hear about that. The full line-up and programme is not being released until Thursday next week. So you can join Scott Alexander for the launch of the Annual Review programme on Thursday, 7 July.

But if you've never been to an Annual Review before, the conference is a one-stop shop for HR and employment law professionals. Legal-Island bring together leading employment lawyers and HR experts in Northern Ireland to provide you with a comprehensive update on the most important developments in Northern Ireland.

So your learning is reinforced with a digital notes pack. It's got over 500 pages of detailed notes, templates, precedence, and you can refer back to that at any time. And you also get recordings of all the sessions. So look out for the email after the webinar with more details on that.

Mark, you are going to be kicking off the Annual Review on 16 November and you're also going to be finishing that on 17 November. What are you going to be talking about?

Mark: Thanks, Christine. Well, effectively, I have the same role at Legal-Island Annual Reviews every year. In Part 1, I look back over the developments over 2022 and look at the key legislative changes, and that will include this year things like parental bereavement leave, domestic abuse safe leave, and all the changes that we've seen to our limits in terms of compensation through the tribunals, etc.

And then I look back at the first five of the top 10 of cases that have come through in 2022. And this is where Scott Alexander and I fight every year about which cases go into the top 10. I have currently whittled down to 16. I'm having difficulty getting them down any further.

But we'll be looking at cases like Hope v the BMA, which is about frivolous and vexatious grievances. We'll be looking at USDAW v Tesco, which was a High Court injunction about a contract benefit. We'll be looking at Crane and Others v the Secretary of State for DEFRA about trade union check-off. We'll be looking at HMRC v Atholl Heights Productions, which is about mutuality of obligation. We'll be looking at Clark v Middleton and Others, which is a TUPE failure to inform plans. And we'll be looking at Rentplus UK and Coulson, which is about the Acas Code being applicable to sham redundancies, and many, many others.

And then in Part 2, I take the crystal ball out and look into the future to see what is potentially down the line in 2023.

But as the years go on, Christine, this gets harder and harder and harder for me to do because it's anybody's guess. So I make an educated guess about what's coming down the line in 2023. And to that end, then I close the conference on that.

Christine: Brilliant. And I really would recommend Mark's sessions. They're great. They're great every year, so definitely do come along for that.

Now, Seamus, you are going to be dealing with working versus shirking from home, if we can put it that way. So you've got the LRA's lovely Hybrid Working Guidance, which maybe Elon Musk needs to take a read-through because he has told everyone at Tesla this week that if you're not in the office 40 hours a week, he'll assume you've resigned. So we've got two ends of the spectrum here. Employers don't quite know what to be doing. Seamus, what will you be telling us?

Seamus: Well, going to really look at the experience that we've had from the pandemic, where we were just slightly before that, what happened during the pandemic, and then what it's been it’s workings.

I would anticipate by the time we get to November, Christine, that things will have changed yet again. We've probably had a situation where maybe some employees are being able to hold off returning back to the office through one way or another. Then we're into the summer period. And then when we hit September, I think we will see an August . . . and we did start to see glimmers of it last August as well, where employers will meet those demands about returning to the office.

And I think the other aspect is that there is some exposure at the minute in relation to the employees that are in the office and those that are outside the office and working from home. Is there a dilution of responsibilities? Is that a good thing or a bad thing?

And specifically in relation to employees very much enjoy working from home, but while they're at home, are other employees having to pick up the slack in the office for different activities that need to be conducted in the office?

And then really looking at this process of the hybrid working. That seems to be the middle ground. That seems to be what is currently in favour and about being able to facilitate that.

So really looking at the strengths that the employer has to force certain employees back in, or also to come at it from a reasonable perspective and maybe looking at those hybrid possibilities. And even in relation to is there an onus on the employer to start to redistribute duties and responsibilities for those employees that are going to be working from home and those employees that are in the office?

The other big issue, I suppose, that comes around with all of that is the ability for the employer to check on employees and what work that they are doing if they are working at home. We've all had that shoulder at the wheel aspect during the pandemic. We've now come out of that, and I want to look in and around those surveillance aspects, some things that we've talked about previously on some of our webinars, and what employers are entitled and not entitled to do and what demands they can make of employees.

The classic one of someone turning up to the meeting with their camera off maybe because they're not able to present themselves in a professional manner. Who knows?

Christine: To put it politely.

Seamus: We've had some of those queries that have come in about employers. They can see that the work is getting done, but there are maybe short comments that they're concerned about from the other side of it.

So going to look at it all. I think that this will develop by the time I get to 17 November. So trying to bring it together and learn from those experiences that we've had over the past two-and-a-half years.

Christine: That's brilliant. Thank you both for providing that synopsis. So we've come to the end of our webinar. Don't forget that you can follow myself and Seamus on Employment Law at 11 on podcasts, Spotify, Amazon, and Apple. If you want to check that out, you'll never miss an episode with us.

But the next free webinar is on Thursday, 7 July, with Scott Alexander making the announcement on the full programme for Northern Ireland. And then join myself and Seamus on Friday, 5 August, for another Employment Law at 11.

Thank you all so much for listening. Thank you, Mark, for coming along and joining us today. And thanks again, Seamus. I'd also like to thank Katie in the background. She's dealing with all the technical stuff so we can keep on chatting. So thank you very much, Katie. Everyone have a lovely weekend. See you soon.

Seamus: Bye.

Mark: Bye.

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