Employment Law at 11: Feeling the pinch? Cost of Living Special.

Christine Quinn from Legal Island will discuss your employment-related questions with Seamus McGranaghan from the employment team at O'Reilly Stewart solicitors.

1. Real wages fell at a record rate between April and June as the cost-of-living crisis took hold and inflation slashed the value of workers’ pay, official figures show. When the effect of rising prices is considered, pay including bonuses declined 2.5 per cent in the latest quarter compared to a year earlier.

Seamus answers your questions, including:

• What are an employer’s legal obligations in relation to providing financial support?
• Contractual pay rise v one-off payments – the pros and cons of each solution.
• Company loans to employees - should you offer them?   And if so, how do you manage them?
• Your employee takes on a second job – should you care?

2. In these tough economic times, zero-hours workers and those in the gig economy are among the most vulnerable – what’s the latest on this ever-evolving area of employment law?

The Recording

Transcript

Christine:  Good morning, everybody. You're very welcome to Employment Law at 11 on this very dull September morning.

So Employment Law at 11 is sponsored by MCS Group. 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 about how MCS can help you, head to www.mcsgroup.jobs.

So you're very welcome, as I say. My name is Christine Quinn. I'm one of the Knowledge Partners here at Legal-Island. I'm joined as usual by Seamus McGranaghan, Director at O'Reilly Stewart Solicitors and employment law expert.

So today we've got a bit of a special Employment Law at 11 on feeling the pinch on the economic crisis that is on the way or that we are in the midst of.

Poll Results

We've got a few poll questions just to kick you off. So if we could get the first poll up there, Katie, that would be great. And you can just vote by clicking yes or no to this particular question. So are you doing anything for workers to help with the cost of living crisis?

We wanted to do this webinar today because we have been getting a lot of queries about this particular topic. So we thought we'd just deal with it head on. But first, let's see what you guys are thinking.

Let's have a look at the results there, Katie. Okay. So we've got 37% are yes, and 63% no. I was expecting slightly higher, I have to say, in the "no" category, but maybe it's because people aren't quite sure what they can or should be doing at the minute. Seamus, what are your thoughts?

Seamus:  Yeah, I am surprised by that. I would've thought that just on the basis of what queries I've been receiving from clients and discussions that I've been having with clients . . . And it maybe is just that it is at the contemplation stage and employers maybe here are looking to see how things go over the next few weeks.

But certainly, the tone that I seem to be getting from my clients is that they either have already done something, maybe back as far as April, May time, or that there is certainly a plan that they are going to take steps in terms of trying to help employees.

I think probably at the minute, Christine, we're all holding our breath because we've enjoyed the hotter weather over the summer, the longer stretch in the days. Depressingly, at the minute, you can see the nights are starting to get shorter. We're going to be using a lot more heat and electric, and that's where the surge has been in relation to the cost of living, outside of food and petrol and things like that. The heating and the lighting are going to really kick in.

And I think just as the darker days approach, and we move towards Halloween and then Christmas, and then the bleakness of January, I think there's a lot more to come still in relation to where employers are going to be put under real pressure by employees, and maybe more so for those employers that are not unionised. The unions have taken quick steps in relation to trying to move things forward in terms of getting pay rises or bonuses and things like that.

So I'm interested to see, though, just what will develop, but I am surprised now that we're showing such a low figure on the steps taken by employers to date.

Christine:  Yeah. Let's have a look at what people are actually doing then. So of you guys that said yes, you are taking some steps, if you can click all that apply for what your particular organisation is doing. So we've got contractual pay rise, one-off payment, offering a company loan, offering extra hours, or consenting to your workers taking on a second job. If you could click there and we'll see what you're up to.

Okay. I can see one is coming out very much on the top. Katie, let's have a look at those results. So we've got 67% of people that are doing something and have gone for the contractual pay rise, we've got 41% on one-off payments, and then consenting to them taking a second job is there at 19%, which is quite an interesting one. Seamus, what are you thinking there?

Seamus:  Yeah, I'm surprised to see that we have in third place the consenting to take a second job. And I know that we're going to have a discussion about that, but certainly, the contractual pay rise seems to be the one that comes out there in the majority and on top. And that does seem to have been where employers have looked to provide assistance to employees.

We've had, I suppose, a difficult period recently in terms of recruitment and employers have had to take different types of steps in order to look at retention of employees and to give consideration maybe to ways of encouraging employees to stay within their workplace and not move around. But certainly, that would've been through contractual pay rises.

And a lot of my clients have said to me, "Look, I'm just coming out of a phase of two years where we have substantially increased salaries". Maybe not across the board, maybe where certain individuals have come and said, "I have another offer. Can you match it, or can we have a discussion about it?"

And then they're coming to a point now definitely I think from . . . In around March/April time there, the talk has very much been about increasing salaries on a percentage basis and trying to move that along with the rate of inflation.

And I know and whenever we had Mark that came to our session I think in June, Mark was saying that at that time, the unions were looking for 9%, maybe up to even 11% in terms of increases. And 10% is a substantial amount for an employer to take off their profit. So you can see there that that's the main step.

The other one is the one-off payment, and a lot of employers have done that. We've heard of stories on the news and in the media about employers saying, "We're giving all our employees £5,000".

I suppose the worry is . . . and we had a quick chat about this before we came on. The worry is that good old saying of "eaten bread is soon forgotten". And some employers have done that and that money will have now been spent and forgotten about. What happens now going forward? Because I think that we're still to come to the worst of this.

Christine:  Yeah. I mean, I think it's interesting coming out of the back of COVID. During COVID, we all got quite touchy-feely, and we all wanted to have wellness in the workplace, and that was a very big focus and employees were saying that they enjoyed that and wanted that. But now, I think it's returning onto the cold hard cash argument, because everything has just gone up in price so much. I think the media are really stuck in it as well. I think a lot of employers maybe have been waiting for it to bottom out and we haven't reached that point yet.

Seamus:  No. I think that the anticipation is that employers are going to have to put their hands back into their pockets again, or certainly look at producing some alternatives for employees.

And there are genuine circumstances we're reading about where people are saying, "It's getting to the point where I can't afford to go to work because of my childcare, because of my travelling, and all the expenses that we have".

I suppose we'll get into it in a bit about those alternatives those employers could look at, facilitating working from home and things like that, to try and ease the expenses. But certainly, I think we're in for a difficult few months.

Christine:  Yeah. The basis of this webinar really was an article I read, which was quoted that between April and June, as the cost of living crisis took hold, inflation/the value of workers' pay . . . So pay including bonuses has actually declined by 2.5% in the last quarter, compared to this time last year.

Employer’s Legal Obligations in Relation to Providing Financial Support

So I suppose the first question really, Seamus, is what are an employer's legal obligations in relation to providing additional financial support?

Seamus:  Well, the easy answer to that is they're few and far between. The employment relationship is regulated on a contractual basis, and then we have our statutory requirements for employment, so things like our minimum wage or if we're paying the cost of living wage, if we are looking at pension contributions, and things like that, all those sort of statutory matters that are set out in law that an employer has to do.

But outside of that, yes, there are things in relation to health and safety and welfare that an employer has to look at and consider in the workplace. But when it comes to what assistance an employer has to give to an employee who may be financially stretched or facing financial hardship, there are no regulations or statutory and provisions in place that require an employer to do anything like that.

There's a CIPD article that we had looked at, Christine, and there was a survey that PWC had done that CIPD reported on. And they had said that 83% of large employers were intending to take steps to provide financial support to their employees.

And it's just that aspect that I always think about in relation to large employers. We don't, in Northern Ireland, have as many large employers as they do in England or Wales or Scotland or in the south, in the Republic of Ireland. We don't have a lot of those substantial, significant employers. Yes, we have some of them, but we don't have as many.

And a lot of the economy in Northern Ireland is through family-owned and -run businesses. They're small enterprises. Yes, there are larger ones, but you imagine the capabilities and the ability for the employers, maybe the vast majority of employers in North Ireland, mightn't be as significant as what it is elsewhere.

So that concerns me slightly, that you have 83% that are of large employers, but we mightn't have those here.

The types of things that have been discussed and talked about are very similar to what we had in our poll, the likes of pay rises, bonuses, one-off payments, vouchers, and this idea of shopping discounts for some of the supermarkets that they could provide to their staff, hardship funds where the employee is making a direct approach to the employer and saying, "I'm in difficulties. Can you give me some assistance, and can we come to some sort of agreement in relation to that?"

The other things are looking at saver clubs within businesses where an employer deducts a certain amount from salaries, or that is nominated by the employee, and it's saved by the employer. It's maybe placed in a higher interest-bearing account and there are some benefits there to that.

And then it's moving through to those other aspects of having financial wellbeing programmes in work, maybe where you have the ability for your staff or your employees to speak to a financial advisor, somebody that can come in and give advice.

And really then down to looking at flexible working, and the actual contractual matters that you could make maybe temporary adjustments to, to assist an employee. So maybe flexible working, maybe a change in their working patterns. If they are having difficulties with childcare costs, maybe look at alternative shift so that they can manage childcare in a better way and maybe more efficiently.

And those sorts of schemes in relation to making sure that the employee is getting the benefit of any schemes that are in place, government schemes in relation to tax savings, and those sorts of things.

Maybe this aspect of a financial review being done either internally or by a third party to make sure that employees are getting the most benefit out of their salary that they can.

And I know that there are some employers, these larger employers, that are giving assistance in relation to looking even at home insulation programmes and adjustments that could be made to home in terms of saving for light and heat and things like that.

But the bottom line is, ultimately, that is a stretch for employers. There's no legal obligation on the employer to take those steps. But we are in the zone at the minute of certainly an employer is feeling morally obligated, and also just from a position of protecting the business. It is this fear that the employee is going to come and say, "I can get a better deal somewhere else. I can do less work and I can get paid more", or, "I can do the same job at another company, but they're going to pay me £5,000 or £10,000 more for doing it".

And it's that fear for employers in terms of the very real impact of maybe staff shortages, recruitment costs, training costs, time, all those sorts of things. You can really just see it all has the potential of hitting the very difficult aspect.

Certainly, what I'm hearing from my clients is that there is certainly more of this position of employees making the approach to employers and saying, "What are you going to do for me?" And I think that comes from a genuine place of employees are concerned. They are noticing the fact that if they look at it overall, there's been a decrease in salary because costs have risen so highly for everything else.

So I think employers are definitely going to be feeling the pressure to do something, and it's the balance of getting that right. I suppose it's back to that point of maybe people that have moved earlier in the year to provide pay rises, but inflation has moved and the costs have moved so broadly that maybe they're going to come back and have to dig a little deeper into their pockets.

But legally, the difficulty is that you have this aspect that there's nothing in regulations or in law that that will force the employer to do that. This has to come from a place of the employer seeing the bigger picture, I think, and thinking about retention of staff.

It could also look for an employer to say, "Well, look, if I have to increase my salary aspect, what I want to do instead is look to maybe reduce numbers and look at redundancies, look at more efficient working", things like that as well. So you can see it could all get very tricky and difficult.

Some of the other sort of smaller things that I think employers could do in terms of helping employees would be you can look at this idea of an advance in salary. I suppose that there's this risk that a lot of employees could be . . . It's those classic adverts that you see on the TV about the payday loans. They're paying high interest. They're getting into more debt.

If there was a facility for the employee to come to the employer to say, "Look, could I get an advance in my pay?" or, "Could I get a company loan?" those sorts of things maybe could be looked at.

But maybe also just some open and frank discussions in the workplace around debt management and about, ultimately, if there is a real squeeze, you could end up with highs absentee periods, where people just can't come to work because there's stress, anxiety, and sickness arising because of financial situations.

So it's looking at all those and maybe debt counselling services. It's a tricky discussion to have, I think, with employees because some employees are very proud and don't want to have those discussions or don't feel that it's a discussion to have in the workplace. So it's really just letting employees know, I think, and letting staff know that there are options and help available for them, if they wish to take account of it.

Christine:  Yeah. So really, Seamus, there are no particular legal obligations around assistance, but you have to look at the bigger picture if you're going to retain staff in what is a very competitive market at the minute. You need to be taking some steps.

I'll come back COVID time and time again, because I do think that it has had a massive impact. We did become closer to colleagues during COVID. We saw into their lives more. And now I think there's almost an expectation that employers will assist, when I think even a couple of years ago it wouldn't have even been contemplated.

I think friends of mine have had employees coming and saying, "I'm caring for a family member now. I need a pay rise to assist with that". It starts to pull at heartstrings, I suppose, and you start to feel like there are obligations when there actually isn't a legal obligation.

But the staff retention, you're getting people, as you were saying, clients sitting with people with job offers on one hand and saying, "I want to stay with you, so give me a pay rise". You have to balance, "Can I afford to recruit? Can I afford to train with throwing the extra money to somebody?" So it's a tricky one and I don't envy people that are dealing with it.

Seamus:  No. And this comes off the back, I suppose, of COVID as well and the criticisms of younger employees who are quietly quitting, as I was reading about during the week, and those challenges as well. And it's a bit of a melting pot at the minute. But we hope that it will settle at some point. Hopefully it's just about getting through the next chunk of time here, maybe into the spring again.

Contractual Pay Rise v One-off Payments

Christine:  Yeah. So we've got contractual pay rise on one hand, which obviously becomes a legal obligation once you do it, it's in the contract there, versus the one-off payment. So how would you manage a one-off payment? How do you express that to make sure it's not, "Oh, it's October. It's time for my one-off payment again"?

Seamus:  Yeah, there is that risk. And just going back to the poll there, clearly we can see that the contractual payment is the way that the majority of employers have gone. Second, then, you have this aspect of the one-off payment.

Again, Christine, it's just about good communication. I think that if there is a one-off payment being made, it needs to be notified to the employee in writing. If it's a one-off payment across the board to all employees, maybe even a general company memorandum just to inform and to notify that it is specifically related to the current cost of living crisis and that it is a goodwill payment and a goodwill gesture being made by employers to essentially look after and care for the welfare of their employees. And that's important that it is put forward in that way.

I think if you start to get into an aspect where a payment is being made every quarter, you could start to build up this idea of a custom or practice or a precedent taking place and an expectation from employees that this is going to happen. So you do need to carefully manage that.

I think when you're looking at pros and cons and ups and downs of whether it's a contractual one-off payment, or whether it is a . . . Sorry, a one-off payment or contractual pay rise, it's a difficult one. What goes down better? What do people appreciate more?

I think if you break it down and look at it in relation to a contractual pay rise, it ensures retention of employees. It rewards longevity. If you stay, you will be rewarded. And it also helps employees plan budget for the next year, if they are aware of what their salary is going to be. This idea of not knowing can put pressures on.

And it can be more cost effective than paying bonuses. Bonuses can fluctuate. They can go up and down in regards to sales, commissions, targets, things like that.

And I suppose if it's given across the board, it reduces competition and the risk of animosity between members of staff, as opposed to bonuses and some people getting more than others and things like that.

The difficulties in relation to it are obviously that it's a permanent increase and permanent cost for the business. And it's not suitable for all types of businesses either in relation to annual pay rise. And in most contracts, you'll always see that pay rises are discretionary, and they're usually set against some sort of performance review or target.

I think when we come to a one-off payment, it can be more financially feasible, and it's not contingent on variables. If it's given, it's given across the board and it's a one-off payment that everybody gets.

And it might also assist in relation to motivation. An employee might be very appreciative of that and they might be motivated. It might improve their dedication since it's not performance-based and it's not looking at loyalty and things like that.

I think the difficulties and the negative aspects of it are that it could also demotivate as well as motivate. That's the other risk. They may see it as a one-off payment, and it may not go down well. It may not be enough, and there may be complaints about it.

But it can result in a quick turnover of employees, where you have a one-off payment, someone will stay, get their payment, and then move on somewhere else. It can attract that aspect of it.

And I think, as well, it can also affect your tax position, whether or not you are going to pay a high percentage of tax in relation to a bonus you weren't expecting to pay. So it really just depends on how the employer wants to look at that.

I know certainly some of my clients gave the option. They worked it out and said, "This is the budget. You can either have it as a pay rise or one-off payment. It's up to you what you want to do". And for families, maybe it worked out better. Maybe for higher earners, the bonus worked out better that they could do something with the bonus, where for other people, the preference was stability across the year, "I like to know where I stand".

Christine:  Got a few questions coming in, Seamus. So we're being asked, "For a one-off payment, how do you determine the cut-off?" So would you offer it to all staff earning below a certain amount? It's really up to you how you want to play it, isn't it?

Seamus:  Yeah, basically it is. I mean, I think that you do need to have your antenna up in relation to how these are going to be received, not just by the people that are getting them, but if you are excluding others as to what their position will be.

I did read during the week this idea now of the sort of middle to upper earners that haven't really been affected before by cost of living, and that's where the pinch is for them now because they are being impacted there. So I do think you need to be careful in relation to how you go about selecting one group to the other group.

It's a difficult one in that you don't want . . . I mean, that's the key thing that would look to demotivate people, is if somebody gets something that you don't get and you don't understand why.

But you could look at it also maybe on a sliding scale. Maybe there's a higher payment for the lower earners and a moderate or lower payment for anybody that is earning above a certain amount.

But you're always going to get difficulties in and around the borders of where there's a little bit of crossover there, but essentially, you can make that decision.

And I think if you're doing it on an across-the-board basis, that's fair enough, but my mind does trickle into if there is a certain element of the workplace that is more focussed on women and that they don't get a pay rise, is it then going to become discriminatory and things like that. So you probably need to look at it in more detail, but I think in general it's up to the employer as to what they want to do.

Company Loans to Employees

Christine:  And with a company loan, you've mentioned that a couple of times, how would you go about managing that? You're going to need paperwork to back this up. It's going to be a deduction from wages in reality, isn't it?

Seamus:  It is, yeah. Look, some employers, some of those large companies, certainly banks and financial institutions, will automatically offer employees loans, and there can be good benefit for it.

What we're looking at really here, though, is in relation to employees coming to say, "Look, my car is broken down", or, "I need to fix the heating in the house. Can I get a loan?" I think in those circumstances, it's always best to look at ratios in relation to the loan. I think that you should be making sure that there's a balance of how much the loan is versus what the monthly salary is or the yearly salary, versus what the repayment period is going to be, and then taking into account any notice period that the employee has to provide.

And I'm thinking more along the lines of protection for the employer so that the employer is not left high and dry if an employee chooses to leave. I've certainly had situations where an employer will withhold or start to withhold salary if there are loans that are owed coming towards the end of a notice period, where an employee has decided that they're going to leave. So you don't want to have a huge, big loan that you're never going to be able to recover, and you're going end up in difficulties having to get it back.

But you're absolutely right. The terms of the loan need to be clearly set out in writing, and the employee needs to be particularly clear about the impact of the loan, how it's going to be deducted, when it will be deducted, and what happens if they come to a point where they're leaving and it needs to be repaid.

It's similar to those covenants that you would see in contracts, in the terms where the employer has facilitated training or paid for part of an educational course subject to the employee staying on for a certain period of time. Those always lead to difficult conversations, and there can be a lot of fallout around it. So that's why you need to have it set out particularly in writing, so that both parties know where they stand when it comes to the loan.

The other aspect, I think, with loans that you need to be careful about is that if you are deducting from salary during the month, you're not falling below the minimum wage.

I certainly have cases in the past where HMRC have contacted clients after inspections and have had concerns around where there have been deductions for loans or further matters where the hourly rate falls below the minimum wage. So you just want to make sure that for your lower-end paid employees that you're not doing anything that's going to put them into difficulty or put you into difficulty where you're going to end up with a penalty by Revenue & Customs.

But the other thing is from a tax perspective, they can be efficient as well in relation to loans. And again, I think if you had some aspect of maybe financial advice being provided to the employees, that would assist.

Christine:  You pre-empted my next question there on the national minimum wage. There were a few people going, "What about the national minimum wage?" So, yeah, your crystal ball is working, Seamus.

Seamus:  Yeah, I've been there before with clients. So it's always one that's on my radar.

Employees Taking on a Second Job

Christine:  Yeah. So just conscious of the time, I want to just get onto kind of the last part of this discussion, which is about employees taking on a second job. On the face of it, you would go, "Well, fair enough. It's their life. Off they go, get on with it". But it can cause difficulties, can't it?

Seamus:  Yes. I mean, the main thing would be, again, coming at it from a welfare perspective is that we do have our legislation in Northern Ireland. We have our Working Time Regulations of 2016, and they set out specifically the ability for a maximum working week, and that's set out in Article 4 of the regulations.

You can contract out of that, but the reason why it's there is it does come from a health and safely perspective. If you're driving heavy machinery or you're operating dangerous machinery, you are working 90 hours a week, and you're coming into work to do your job, you're tired and your eyes are just not on the ball as it should be, and you're injured or somebody else is injured as a result of that.

So the legislation is there to protect employees, to make sure that they get sufficient breaks and rest away from work. So that's really what you're looking at when it comes to second jobbing.

And if you're already doing a full-time job of 40 hours a week in your main employer, and you've taken on a second job then, whether it is in hospitality or in logistics or whatever it is . . . There's a lot of this casual work that is available at the minute that employees and workers can dip in and dip out of at will. It can be very difficult for an employer to manage that. So there are conversations that need to take place.

You will see in most contracts of employment issues around the working time aspects, and then what the position is in respect of second jobbing, whether you've got a second job or not.

Usually, in management contracts, where you're sort of at manager level, it will specifically say that you're not permitted to have a second job unless you get the consent of your employer to do so.

And if you have, as an employee, taken on a second job, you could be in breach your contract of employment, and you may get correspondence from your employer to say that they're aware of it and that it needs to cease, or you might get called in and a risk assessment might need to take place in relation to the hours that you're working, what it is that you're doing outside of your main job, and things like that. But it is something that employers need to keep their eye on.

And also whether or not performance dips as a result of a second job. That's another sort of very real aspect of when employees are taking on second roles. There are rules and regulations out there to protect employees in relation to it.

I think the other things to watch out for in relation to that is you'll have fidelity, and you'll have specific clauses within contracts of employment that will say that you devote your working time to this role.

I think, during COVID, a lot of people did take on second roles. Hobbies and interests became business ventures and things like that. And I certainly know a lot of people that are doing their regular job, but have another job on the side. That's going to become, I think, more prevalent as this cost of living crisis gets worse. People are going to be forced to take on another job or role.

And it's just important, I think, that employers are having that discussion with their employees and letting them know that if they are taking on second jobs, whether they need to look at their contract of employment to get consent for it, or whether they need to make the declaration in respect of their working hours, or looking a contracting out of the hours under the Working Time Regulations.

So it's no more than 48 hours over a period of 17 weeks, as set out in the regulations. And again, you could potentially have Health and Safety Executive in Northern Ireland coming in and doing inspections and checking that there isn't any breach of that happening.

One of the other options in the second poll was, "Are you offering more hours?" And it's just something to flag up there also, Christine, that if you are offering more hours, it's not a situation arising whereby the employee is working 60, 70 hours a week and you're in breach of the regulations at that point.

Christine:  Yeah. We're getting quite a few questions through on the loan point, and we're wrapping up here. So with the national minimum wage point, are you saying that essentially you can't offer a loan to somebody who's sitting right on the national minimum wage because their repayments will put them below that?

Seamus:  Well, if you're going to do a situation where you're making deductions from the monthly wage, then there's the potential that whenever you look at it, the employee is going to be earning less than the national minimum wage.

The other way that a lot of employers do it is that they don't make deductions and they say, "There's a company loan here of £1,000, and we'll call it in at any stage". You don't necessarily have to go down a route where you are making those deductions at the time.

But I think it does depend on how it is set out contractually and what exactly the agreement is between the employee and the employer in relation to those deductions. It could be that the employer is also offering additional work to the employee or overtime in order to facilitate additional work and the ability to repay the loan.

But I think certainly an employer does need to be careful. If there's somebody earning national minimum wage, is there going to be a genuine ability for them to repay the loan to you, ultimately?

Christine:  Yeah. So it sounds like you're kind of on thin ice there, and I would probably go for advice before you enter into a loan agreement.

Seamus:  Yeah, it's one just to be cautious with.

Christine:  And someone else is asking here, "If you're thinking about offering employee loans, could length of service be part of the criteria that you offer it under, or does it have to be offered across the board?"

Seamus:  Well, it depends on what way you want to frame it. I suppose the best way in order to proceed with that would be to say that the company or the business may be in a position to provide a company loan to an employee. But it would be helpful to put maybe some form of application process in place about that.

Looking at loans, it's about the ability to be able to repay them, and you don't want to get into a situation with employees where they're strangled by loans that they've taken via their place of work, and where then you're forced to go down a road to try to recover your monies.

So I think it does need to be looked at in the same way that anybody else would look at the circumstances giving a loan. There has to be that aspect of the ability that you're comfortable that you're not going to place the employee under any kind of difficult circumstances by giving them the loan in the first place.

I think it needs to be well judged and well matched. And I think rather than just saying, "Look, listen, if you don't turn over £20,000 a year and you haven't been here for five years, then you don't qualify for it", if you looked at it from maybe, "Put in an application or come and speak to us about it and we'll give it consideration and come back to you", I think you're entitled to make those assessments.

Christine:  Okay. Brilliant. Thanks, everyone, for all your questions on that. That was really good discussion.

Zero Hours Workers and Gig Economy

If we just move on to our final topic of the morning, Seamus. So tough economic times, as we know. Zero hours workers and people in the gig economy are probably among the most vulnerable. This is an ever-evolving area of law. So what's happening? What's the latest on it, Seamus?

Seamus:  Well, we've had so many developments in relation to zero hour workers. It's really controversial, as you'll know. It works well for a lot of workers, it suits a lot of workers, but it also leaves a lot of workers exposed and it can lead to abuse of those workers as well.

So we know we've had our recent cases, our Uber case where we have clarification around the . . . where you have the courts giving sort of determinations and clarifications around what makes a worker and what makes an employee.

Zero hour workers in Northern Ireland, it is permitted. It's not always liked, it's often criticised, but I was looking at a quote there and it said that there were approximately 11,000 zero hour workers in Northern Ireland. And these are these gig economy employees that we hear about quite a bit. And usually, we don't hear about them in the greatest of circumstances. They are those circumstances where they have been open to abuse, where they haven't been given their proper rights and obligations, and things like that.

Where we're at, at the minute, specifically in Northern Ireland is the Assembly Committee for the economy has started an examination of the Employment (Zero Hours Workers and Banded Weekly Working Hours) Bill. It's a mouthful.

Christine:  It just rolls off the tongue.

Seamus:  There we go. And the bill aims to ultimately replace zero hour contracts with banded weekly-hour contracts in cases where specifically a worker's hours are set out in the contract that will reflect the actual hours worked each week. And this is sort of bringing that aspect of zero hour working in line with what we have over in GB.

So there's a good article if anybody wants to look at that Lewis Silkin have done up. Just some of the points from that are that the bill plans to make exclusivity clauses unenforceable within zero hour working contracts, and that this aspect of being protected from detriment and dismissal if there's a breach of the exclusivity clause.

So that's a big issue because we know from what the courts have told us in relation to our various cases that exclusivity is really the key issue when it comes down to determining whether you're an employee or a worker, or what your circumstances are.

The other aspect is that there's an entitlement to three hours' pay where a zero hours worker is called into work, but is given less than one hour of work to complete. So this aspect where you're rang up, somebody isn't available, "Can you come into work?" A zero hour worker gets there, does an hour's work, and then they're sent home because it's not busy. It's this protection of at least a minimum of three hours' work.

And the zero hour worker will be able to request placement in a band of weekly working hours based on their actual hours worked. So if you look at the hours that you have been working over a period of weeks, you can then make a request that these are the minimum hours that you'll get.

And just looking at some of the bands, Band A is from three hours up to but not including a maximum of six hours. Band D is 16 hours up to a maximum of 21. And then you're moving into G, which is 31 hours, but up to a maximum of 36. And then H is, basically, 36 and more. So you can see some of the protections.

And what the bill is looking at is essentially merging the NI legislation with what we have in GB in relation to the exclusivity clauses. But also, interestingly, it's amalgamating some of the legislation that they have in ROI, in the south, in relation to those bands that are there.

But if it does come into force here, and it's one certainly to watch for, it will benefit the low-income workers, and you would imagine it'll be a welcome change for circumstances as they are at the minute.

But look, it's always a controversial one with zero hour workers, and I think specifically if we talk about hospitality. We're reading a lot about closures of restaurants and bars, huge loss of employment across that basis, and hospitality then saying that they simply can't afford because of increase in food and in energy and everything else.

There has been an ability to dip in to zero hour workers on the basis that there are maybe redundancies that have been made for other staff, or that sort of vacuum that has been left where a lot of employees during COVID that worked in hospitality left because it wasn't sustainable for them, and that vacuum is being filled by zero hour workers.

So this would be interesting to see how that impacts upon the likes of those in logistics and in hospitality, and what that might look like for employers going forward, and whether it helps or it doesn't help. Ultimately, I think that's the issue. But that's the sort of recent and most up-to-date information that we have on our zero hour workers specifically here in Northern Ireland.

Christine:  Brilliant. Thanks very much, Seamus. You'll notice that I've dropped into the chat, everyone, a link to the recent guidance from Westminster on employment status that came . . . It's kind of the fallout from the Uber cases over in England and Wales.

Now, it is very clear that it's England, Wales, and Scotland, but there is a really useful checklist as well that you can use and can be applied to Northern Ireland too. Just have a look, it's really good, but just have in the back of your mind it's not for this jurisdiction, but helpful all the same.

And I think it's really interesting that we're starting to cherry pick the best pieces of the legislation from the Republic, the banded hours. I know that's how they operate. And cherry-picking the nice bits from England and Wales as well.

I think potentially it could be great for the jurisdiction, but of course, we just need the folks on the hill to get back to work to help us get some legislation through.

But thanks very much, Seamus. Believe it or not, we've come to the end of our webinar today. So really just remains to say thank you all very much for coming along. Thanks to Seamus for talking to me again this morning.

You can find us on the podcast, obviously, on Spotify, Amazon Music, or your Apple Podcasts.

Also, please do drop me a message on LinkedIn if you'd like to connect. Legal-Island and O'Reilly Stewart are on LinkedIn as well, as are myself and Seamus. So send us a connection request. We'll be very, very happy to connect with you.

And our next webinar myself and Seamus will be on 7 October. So we will hopefully see you then.

There is also a Comparative Table Webinar with Lewis Silkin on 23 September, so tune in for that. We'll be talking about all things sick pay related and the differences in similarities between the three jurisdictions there.

So thanks again for coming, and we'll see you again very soon. Thanks, everyone.

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