Seamus McGranaghan of O’Reilly Stewart solicitors and Legal Island’s Christine Quinn welcome special guest Mark McAllister, incoming Chief Executive of the Labour Relations Agency, for an Employment Law at 11 special.

The NI Assembly is back, and rumours abound about what’s in store in employment law in the coming 18 months – and forewarned is forearmed!

Mark cuts through the rumours and gives insights on what to expect from Stormont. As always, Seamus offers his expert legal opinion on what steps you can take now to make sure your organisation is ready, come what may.

Please note that the employment law matters discussed in this webinar apply primarily to Northern Ireland.

Recording:

Transcript:

Christine: Good morning, everyone. Welcome to Employment Law at 11 sponsored by MCS Group. My name is Christine Quinn. I am a knowledge partner here at Legal Island. I am joined as usual by Seamus McGranaghan from O’Reilly Stewart Solicitors. Morning, Seamus.

And we are also joined this morning by Mark McAllister, the incoming chief executive of the LRA. So, Mark will be taking over in September when Don Leeson retires.

Congratulations, Mark! You're very welcome to Employment Law at 11, and hope Don enjoys his retirement.

Mark: Thanks very much indeed, Christine. Yes. I am sure he will.

Christine: So, everyone, what are we talking about today? So, the Northern Ireland Assembly is back. It is election season. There is plenty of whispers about potential shifts in employment law in Northern Ireland.

We want to share with you some crystal ball gazing we have been doing. And we have had a look at the GB Labour Party manifesto, and we have also had a look at what the Northern Ireland parties are saying on employment law matters.

Please do remember, it is crystal ball here, so nothing is set in stone as yet, but forewarned is forearmed.

And on that note, I am delighted to announce the return of Legal Island's flagship event, the Annual Review of Employment Law. It is back again this year in hybrid format after last year's great success. You can join us this year in person at the Crowne Plaza, Belfast, or you can join us virtually via Zoom. It is on the twenty seventh of November. So, for those of you who are new to annual review, this is Northern Ireland's must attend HR event of the year. It is our ultimate source for the latest in employment law development and HR trends, right up to the day of the event. And I can testify to that because I will be the one making the changes right up to the day of the event.

So, it is a full day conference. It features two session streams so you have a choice of speakers you can go to see. We will have industry experts leading the discussions and dealing with the topics that are most helpful to you.

So, this year promises to be especially impactful because of the new employment laws on the horizon and the return of the assembly and the changes that we're expecting on employment law, which, of course, we're going to go into in a bit more detail this morning. So, this week, we announced our first six sessions on the industry experts who will be leading them. More on that later.

But thanks, as always, to our sponsors, 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 are interested in finding out how MCS can help you, head to www.mcsgroup.jobs.

As usual, we are going to kick off with some poll questions. Now, I have directed these questions to be most helpful to me today. So, please do join in because what is going to really help me, hone in on the topics that you want to hear about in annual review. So, you're all very loyal listeners, so it'd be great to hear what you have to say about this.

I am not going to display the results on screen, so please feel free to vote. Nobody is going to see what you are voting on. So, are you planning to attend this year's legal island annual review? That is the first poll question.

So, if you could vote, yes or no there. So, Mark, for those, who do not know about annual review, why should they attend annual review?

Mark: Well, it's probably, as I say, the flagship event for anybody involved in employment law, at that time of the year, at the end of November, it's a great way to sort of catch up, network, find out what's happened over the course of the year and then start the horizon scan into the next year.

So, a lot of professionals, I find, have built it into their calendar every year, and sometimes go for other courses and conferences. The annual review is a one stop shop for HR practitioners, for employment lawyers, for trade union officials, for consultants, CIPD members, all of that and it has become now so well established that it's a go to event and the Labour Relations Agency have always been very happy to be present at that because obviously we deal with so many inquiries every year with regard to issues surrounding the employment law and employment relationships.

Last year we filed around sixteen thousand individual inquiries regarding employment law and employment rights. So, it's very, very important for us to be able to connect with the audience that attends Legal Ireland's Annual Review every year and people then, you know, to meet up, to network, to check, you know, compare notes with what's happening and what policies are amended and then what changes they're making to protocols etc. So, it is a great event for people like employment law anoraks like myself. Love it. And people who are less anoraks still obviously go as well, from a practitioner's perspective it is the event to go to.

Christine: Brilliant, thanks very much for that, Mark. If we move on to the second poll then please, Arnold. So, what topics are you most interested in learning about? So, these are topics that I am kind of batting about in my head. Will they be of interest to you?

So, we’ve got understanding cancer and employment rights, substance abuse and addiction in the workplace, conflict in the workplace, workplace volunteering and harassment in the workplace. And I have just noticed my typo there. It is not addition in the workplace. It is nothing to do with mathematics. It is to do with addiction.

Seamus, is anything grabbing your attention from that list?

Seamus: Yes. Well, funny, it was the substance abuse and an addiction in the workplace is one that just come across my desk there last week. I had an interesting case with a client, and, for a new start employee, and a right to work. They were providing a copy of their passport to their employer. And when the employer took the passport for copying, an interesting little white bag fell out of the passport on the very first day of employment. Dealing with that and certainly the issues probably around the right for drug testing within the workplace and policies and procedures in that regard and you know and what employers can and cannot do particularly if the employee doesn't agree and doesn't consent, that's always an interesting one.

Conflict is always the one that I see the most of, I suppose, and ultimately those difficult circumstances that arise in every workplace that can result right up to tribunal claims and if they're not dealt with proper procedures and following codes of practice and the legislation can be costly for employers. That is always a very interesting one. I think I covered harassment in the workplace at the last annual review, but there's no doubt the ESG we covered previously in a podcast or in a webinar for Legal Ireland, Christine, and we can see that the issues around ESG and particularly what the expectations are now for organisations that are looking to team up with third parties even if they're lending money from banks and lenders and for tender applications that are made. We can really see the expectations now of third party organisations when it comes to working with your organisation around those ESG matters and we do see a lot of the volunteering that takes place in workplaces and the tricky issues that can arise particularly with maybe people's views and whether they're philosophical views or what it is and their unwillingness to involve themselves. So, lots of juicy ones there definitely.

Christine: Brilliant. Thanks for your input there, Seamus. Now I will just move on to the final poll, which is what is your biggest challenge related to your role?

So we've got a) keeping up to date with legal changes, which there will be a lot of coming very soon, b) keeping up to date with case law and how it relates to me, c) dealing with different beliefs in the workplace, d) dealing with equality issues, or e) something else. And if you just drop into the chat something else nobody else will see it. It will just be me that can see that, so please feel free to do that.

And on the different beliefs in the workplace, Seamus is actually joining us at the Annual Review this year. He has got, a bit of an interactive session that we are putting together, around different beliefs in the workplace. So, whether or not that is the conflict in Gaza and Israel, or whether it's transgender issues in the workplace, or whether it's just hoping that England's fans stop talking about nineteen sixty-six. These things can get very heated in the workplace, so we are going to come up with a bit of a case study and taking you through the best practice for that on the day.

So, we are looking forward to that. Thank you very much for joining in with the polls everybody. Arnold, if you want to take that off the screen. That is really helpful. Thanks so much.

Okay. So, thanks for joining in everybody. Let's get started. Please remember you can drop in any questions for Mark and Seamus as we go.

So, we know that there is a new employment bill on route for Northern Ireland. We know there is a consultation imminent, but we cannot say for sure when it is going to be and what it is going to contain.

The Labour Party manifesto in particular, other political parties are available of course, but we thought it would be wise to look at the Labour Party manifesto.

It is some indication of the direction of travel, and we have also got a little bit of knowledge about now what the local parties are saying and so that is what we have based our information on today. So, first of all, we are going to have a bit of a chat about zero hours workers.

There has been back and forth in this for a while. Labour seemed to be, at one point, wanting in an outright ban. They dialled this back. Sinn Fein, here, who hold the economy portfolio, they did have a private member's bill on the table before the executive collapsed, and they appeared to be fearing a banded hours approach like the Republic of Ireland. So, what is on the cards now? Mark, what do you think is the direction of travel?

Mark: Yes. I mean, it is a pretty safe bet that somewhere in the department for the economy's consultation document, which you might see within the next three to four weeks, there will be big headline issues such as zero hours contracts in there. I think the difficulty is things like zero hours contracts and employment status are really big-ticket issues in employment. They are not just about tweaking or amending existing rates.

They are to do with fundamental constructs of an employment law, and I think with zero hours contracts, and we've seen the department in previous years prior to Sinn Fein's private members bill try to look at the whole issue about non-guaranteed hours contracts, zero hours contracts, banded hours and all of that. Really trying to wrestle with it and very often what happens it comes back to this whole ideological thing about should zero hours contracts be banned outright because they are a vehicle for exploitation right through to the other end of the spectrum where some employers will say, this is the business model we need because it is the last bastion of ultimate flexibility because our work is so seasonal. We just need to use zero hours contracts.

So, it's interesting to see in the last number of weeks or the last number of days the Labour Party for example talking about a ban on exploitative zero hours contracts and that's a really interesting turn of phrase because obviously that's back to the Taylor’s report and the notion of this one-sided flexibility.

I think the biggest problem that we will find, and this will become apparent through the consultation document, is a translation from political language into employment right. That is one of the biggest challenges any government party faces. You know, the rhetoric being converted into a definitive employment rate and the mechanics that underpin that. So, you mentioned banded hours. You meant you know; we have seen in GB where there's provision to ask for a predictable contract, but it is only your right to request. So, will there be something that underpins that to say if there is a pattern of a twelve-week back reference in period to say there is a pattern, you have the right to request that, or is it going to be more than a right to request? So, the great deal of uncertainty is about just what are the mechanics going to be around this because an outright ban seems entirely unlikely, but a very tight control of what constitutes, you know, zero hours contracts so that the business model is not predicated on exploitation.

And that is, I mean, that has been on the cards for some time. And as I said, the Department for Economy in various junctures have wrestled with it, and they have looked at the experience in the Republic of Ireland. I mean, you have the right to request, obviously in GB, and you have the whole notion of, you know, not having exclusivity clauses and zero hours contract. But the nettle has not been properly grasped, and it is going to be a difficult one. There's no doubt about that because whilst we have ONS statistics about how many million people are on zero hours contracts, it doesn't give us a great insight into how many of those are, you know, in hospitality or retail or business models that are predicated on this whole notion of everybody's on a zero hours contract. And, you know, that is just our business model because it helps us keep costs to a minimum. Those type of exploitive contracts are problematic, and I would have a guess that that's what the minister and the department are trying to address.

Christine: And Seamus, it is really about, I mean, the small businesses; Northern Ireland is made up of small businesses, that is our economy. And small businesses have been through a heck of a time in the last five years, come out of the COVID pandemic. We have got, we had a cost-of-living crisis. We had the crisis with energy prices. So, it is really about finding that balance, isn't it? We cannot hit them with everything at once, can we?

Seamus: No and you think particularly around hospitality and, coming out of COVID, a lot of bars and restaurants do not open, as they did previously. A lot of the bars and restaurants now do not open on a Monday and Tuesday. They look towards the latter end of the week.

And there is no doubt that the zero-hour aspect of it is complex. It works well for some industries and for some work organisations. I mean, particularly around bank staff and charitable organisations and things like that, it can work very well where there's organisations that do need a backup in relation to staff.

But there is no doubt that it is absolutely abused as well, and it's always one of the really thorny issues that, the tribunal have to deal with. And even the thoughts of new regulations or legislation coming in and the tribunal having to, you know, deal with matters that are not just as clear cut. As Mark said in there, you might get an outright ban, you might get a tightness coming around it to give more protections. But you can imagine the headache that that will give for employers to understand and for tribunals then to pass judgment on it on that as well. But it is one of those issues and I think it works for some and it does not work for others. And particularly when you think about younger employees as well, this can be open to abuse.

You know there's great flexibility around summer jobs and maybe for young employees, those that are continuing to study on, but there is an aspect certainly where there is an employee that could be hitting forty hours a week for six weeks and then the following week there, they don’t receive any, and they're dependent on it.

You can absolutely see why there is a need to tighten it up. And I know that for Connor Murphy at a time, definitely this was on the radar. So, I agree with Margaret. I suspect that there will be something down the line coming forward.

Christine: Yes. I would say the exclusivity bit is almost certain to go. I mean, it just, I do not see how anybody can say, oh, this is a genuine causal relationship, but you are not allowed to work for anybody else. You know? I think that will certainly go. Banded hours, Mark, do you think that that is a route that the executive will go down, or do you think we will come up with some sort of will we reinvent the wheel a bit ourselves?

Mark: I am not sure on that, to be honest with you, because banded hours, on paper look as if they are a possible solution. But the difficulty is if the legislative mechanism forces a hand of business to look at just another way of working to reinvent a business model, the question is, you know, is that what you're trying to do, you know, are you actually protecting people's rights or you know by putting everybody onto a two hour contract, guaranteeing two hours as a bonded contract, you're automatically lifting them out of the definition of a zero hours contract. But if they are banded at two hours but then continuously do sixteen, you know, the question is, do you convert a loophole into a calendar?

Yes, and that is a difficulty because in all, and I mean, Seamus will know this as a practitioner. If there is one thing you can be sure about in employment law, it is the law of unintended consequences attached to the exception to the rule. So, it is back to my point. It's about converting the ethos of a political dogma around something into a workable legislative framework without creating more complexity. And you are right up with the small business employers. Small business employers, you know, if it quacks, if it walks and it quacks like bureaucracy to them, it will be bureaucracy regardless of the subject matter, if it's zero hours or paternity leave or whatever, if it looks like more bureaucracy to them, that's how it'll be, that's how it'll be perceived. So it's trying to strike that balance by, you know, creating a legislative framework that's easy to understand, does what it says on the tin in terms of trying to, you know, eliminate any real possibility of exploitation because of that's what's what the underpinning logic of it is, but also making sure that the business has a degree of flexibility.

And trying to meet the needs of both SAGE and employment law is a notoriously nebulous and difficult thing to do and that's just the world we live in so it needs a lot of thought you know; these are big ticket, as I said big ticket issues, I mean if you think about all of the things that could possibly come in in the good jobs bill or whatever title it's given in a couple of weeks’ time, I think what you're going to have is you're going to have some technical reforms which are relatively straightforward. I think you're going to have some GB parity issues which, you know, have been brought in through private member bills and GB, and then you're going to have these monstrous zero hours contracts, employment status, and, you know, I say it with soft voice, working time regulation, and then it's which are which are notoriously, Seamus uses the term tongue in cheek, I think, thorny. That is probably understatement of the century. These are very difficult issues to convert into workable legislation.

Christine: We have got a really good question on the zero hours debate actually. So, are annualized hours contracts more acceptable as they give equal monthly pay for workers but allow flexibility over a year? What's your thoughts on that?

Mark: I mean certain industries do use annualised hours. I think even in the public sector further education lecturers are subject to annualized hours you know, and they are workable. They are not without their issues. And I mean, if you look at annualized hours in the context of holiday pay, for example, there is an inextricable difficulty in the link there with regard to the calculation but that is not unique to annualized hours. So annualized hours have been around for a long time and most of the difficulties have been sort of ironed out there and I think annualized hours in a 2024 context and flex you know, in terms of flexibility and expected flexibility, there sometimes is a bit of a jarring there because the two constructs don't always sit well together in that regard. There can be a blunt enough instrument I think unless there is flexibility built in for them, but they are certainly an option.

Christine: Seamus you would do work in the education sector, wouldn't you? Do you have much experience of annualized contracts? Could you see them translating into online retailer warehouse staff or, what do you reckon?

Seamus: I think it would absolutely not suit every industry and certainly if you take teacher contracts for instance that are annualized in the Jordanstown agreement, and the issues that arise out of that then as well because there's an element of goodwill if you take a teacher in the school, there's an element of goodwill in relation to parent teacher meetings in the evenings, school shows, and there's a bit of balance that happens between teachers. I mean teachers work on very regulated hours, they come and take holidays at certain times of the year and there's a lot of downsides to it.

Maybe other people say but they get loads of holidays and that's the upside of it, you know that that's all great but at the same time, and Mark probably can comment on this as well, when it comes down to disputes then that arise and when the trade unions become involved, it's the first point of contact and that's where the difficulties start to arise.

And when relationships break down, then you will start to see, maybe teachers topping up their hours and realizing, I am doing far more hours than what I'm being paid for. And you know, so there is an element of it. It marks out absolutely, is tried and tested and works very well for some industries, but I would imagine where you're sort of open on hours and you're required to be there for a certain period of time, annualized hours might prove difficult in certain industries.

Christine: And I can see another question coming in.

It is like people are anticipating what we are talking about. There is a certain Rolanda Markey that has just asked a question about holiday pay, which I will have to have a word with her about later, but we are going to get into working time regulation.

Mark: Don't answer that question. Rolanda Markey, formerly of this parish. I am convinced it'll be a difficult question.

Christine: Well, what she is asking, is there any hope on the horizon for holiday pay? I did a holiday pay event yesterday, and I had to go and lie down in a darkened dream after it because it is easily the least user friendly or transparent piece of multiple pieces of legislation that I've ever witnessed. So, we, Northern Ireland has the proud ownership of the Agnew decision.

We had the work in time regs updated in January. We have no assembly at the time, so they were just kind of putting through as is.

So, they the working time regs and Agnew do not marry up, particularly in the fifty-two-week, twelve-week debate.

So, I mean, quite frankly, I would love somebody to clarify this for us. Is that in the pipeline and, what do you foresee?

Mark: I think from my perspective, I think working time will feature to a certain extent in the consultation, but not nowhere near in terms of the resolution for all things. You probably see something around the back reference in period, the twelve weeks, and the fifty-two weeks, but in terms of other things, so for example, in GB, there are plans for draft regulation to address the whole issue. People working on regular hours as a result of the Brazil and Harper trust case.

And a lot of the commentators here in in GB are saying, we've heard what's being proposed. They are not actually workable. So, post Agnew, you're going to make a bad situation potentially worse if the regulations follow that sort of direction travel and that hasn't even been mentioned in the Northern Ireland jurisdiction yet; that's only in GB. So, there is a fractured departure obviously in as a result of things that haven't been implemented and case law and when you're talking about Agnew, I think it's worth bearing in mind that there is potential for an Agnew two in the background as well. So, there are the chances of I'd be very, very, very blunt.

The chances of the holiday pay issues under the work and time regulations being resolved in their entirety through the consultation about what is coming up in the next couple of weeks are remote to non-exist.

Christine: Oh really?

Mark: I don't think so. It’s too big of an issue in itself to address within a bill which is going to probably have miscellaneous provisions in lots of different areas. Working time needs to be tackled as an individual issue, in my view, because the case laws all over the place, the Northern Ireland, GB distinctions are obviously very, very pertinent, and, you know, the issues just have not been resolved.

Christine: And what about, a workforce agreement to amend the period to fifty-two weeks? I mean, we have said that it is. In other parts of the working time, right, it's possible to do that. Can we circumvent? No?

Mark: It is. But, I mean, my experience of workforce agreements and relevant agreements and collective agreements are anything to do with work and time in terms of, you know, over and over and above the opt out, not they are not a prevalent feature. It is a bit of a red herring. It is a bit like when you talk there about exclusivity clauses and zero hours contracts, you know. They're void common law anyway, so banning them in legislation is really a bit of a red herring. It looks as if they're, you know, you're making a substantive legislative change, but you're not really because you could probably count on one hand the firms in Northern Ireland that have exclusivity clauses built in to zero hours contracts. And similarly, you could probably count on one hand, the amount of organisations that use workforce agreements to opt out of work and time regulations on issues other than the maximum hour work opt out?

Christine: Seamus, you must be dealing with questions from clients the whole time and it is stressful being a solicitor talking about quality pay, isn't it? I mean you really do not know anymore.

Seamus: It is sometimes head in the hands where you're at and I think that's not helping after Mark's views there. But it's a very difficult piece that sometimes you're able to work through it and you can work through some negotiation in relation to it. I see it like if I have compromise agreements coming across my desk as well, instructions from client. And I'm not long after January, maybe in around March time, I had a real dispute with another lawyer outside of this jurisdiction who was reliant heavily on the amendments of the working time regulations when it came to holidays and my client hadn't received holidays in five years and they were saying, because it was a long term sickness and that's what brought around the compromise agreement at the end of the day. But we got into a heavy dispute almost to the point where it completely was going to blow the agreements that had been made between the employer and the employee because we just couldn't get to an agreement. Eventually, we did get it sorted out.

But at one point, I thought that they may be taking counsel's opinion in relation to what was coming back, and this was it took a long period of time to resolve this issue around the holiday pay, it was not easy. That has not helped things and I suppose it was the shock factor of it whenever we got back to work in January and suddenly we had this legislation that was amending everything yet again, and almost in a way having such a big impact on what we were just trying to take out of it new which I think we got in October, and then all of a sudden we were getting this.

So, clarification around it would be good. And, again, I suspect then that you might end up with, employers trying to take a cautious approach to avoid large scale tribunal claims, but at the same time, difficulties for the tribunal as well, trying to work through, judgments and maybe building up to appeals in the Court of Appeal and maybe getting back out again at the at the Supreme Court. And, like, there is such a great, breadth of, I mean, if you if you take holiday pay from the start and bringing it around, there's such great, case law there that that that is developed and developed and developed. I'm just not sure where it all got to at the end with, with a new, but look, I I'd be certainly grateful for any clarification.

Christine: I think the question about whether you can, you know, do workforce agreements, I suppose the answer is yes. You can do workforce agreements, but it will not prevent, what you are doing from being wrong, essentially. It may well limit the number of cases that you have because if the trade union has signed up to it, their members are less likely to take action against you. But there are always outliers in these cases. Isn't it the British Airways case that was at Dimelo? They were the outliers from a previous British Airways case that they did not agree with the settlement so that you're limiting your exposure to litigation with the workplace, the workforce agreement, but it doesn't mean that you're legally correct.

Mark: That's right. That's right. I think, I mean, lots of sort of prescient employers looked at the Agnew decision, you know, back in twenty nineteen at the court of appeal and said, look, the next part of this, the supreme court of this part of this is really not really relevant to us in terms of how we calculate holiday pay. The court of appeal is now has said this. This is what we need to do. So, there were instances and again it's impossible to quantify but there were instances where lots of employers said right okay, we're factoring in voluntary regularly work regularly achieved overtime in their holiday pay calculation and all the other bits and pieces. And from that date in twenty nineteen onwards, they they've done that and obviously that protected them from the supreme court decision, but it's impossible to tell how many how many employers did that, how many employers did compromise agreements or whatever in the background, but it is, you know, singularly and Seamus says, like, it's head in the hands type material. Singularly, it's the gift that keeps on giving.

Christine: Yeah. It's just yeah. It's one of those things where your plants like, what do you mean? You can't explain to me how to do holiday pay? It's, you know, it's fine. So, like, a basic question, it is far from far from it.

Just wary of the time here, everyone. So, family friendly rights. We are woefully behind here in Northern Ireland, both with regards to GB and ROI on family friendly rights. So, what do you think is in the pipeline in that regard, Mark?

Mark: I think a lot of commentators, in this jurisdiction are sort of expecting a possible return to some of the parity pathway, approach that would have would have underpinned our approach to family friendly legislation in Northern Ireland, you know, traditionally through right from the Employment Northern Ireland order in two thousand and two, which give you the right to request flexible work and right through the work and families legislation in in twenty fifteen, which essentially was a karaoke version of what was happening in GB. But because of COVID and because of the lack of an employment bill in GB, in in in in recent years, the circuitous route of private members bills on things like neonatal leave in terms of amendment to paternity leave, in terms of how, you know, how you take it, in terms of things like extra protection for from redundancy in in a maternity and pregnancy context and other things. Obviously, the big one is inflexible working.

All of these, I think there is an expectation that there'll be some nod to these, not because you mean, and they come they'll some of them will involve amendments to regulations and etc. I think one of the difficulties is and one of the things that you have to bear in mind is the legislative process in Northern Ireland is not quick, and that's no reflection on the assembly or whatever. It's just that there is a very sequential choreographed protocol for this to happen. So, although we have three years left in the political mandate and practitioners are probably sitting there saying, three years you're going to get everything done in three years, it's actually a very tight legislative window. It really is. And you have to remember that DFE is rock knocking shoulders with other departments who want to get legislation through the assembly. So, there is a bit of jockeying in for position probably going on there as well. So, but because family friendly is front and center of the post COVID world that we live in and because people's perspectives and work have changed, there is an expectation that things will move in that area.

And, again, the GB party, some of those will be relatively straightforward to do legislatively, but they'll just take time, you mean the consultation process, you have to have due respect for the for the process to happen. So, expecting things like that. The flexible workings, the one that everybody that everybody's looking for, and, it's quite an interesting debate at the minute, obviously, because, you know, the campaign from Flex from First has been very high profile, but that was effectively removing the twenty six week qualification period for the right of an employee to request flexible working.

The Labour government have suggested in their manifesto that it will be the default position, so in other words, unless you can objectively justify not having flexible working as the default then, you know, it should be the default. So that's a that is a marked departure from just removing the qualification, right? So, there are and again that's an ideological thing that's it's very political.

Translating that political language into an employment right is not going to be straightforward but I certainly know speaking to stakeholders in the outside world there is an expectation that there'll be movement on family friendly rights. Yes.

Christine: Yeah. I mean the flexible work and what you're saying there about making it a day one. Right? It seems to me it's kind of moving the issue slightly. So, what I can have busy chat now if it's a day one. Right? Women getting. I'm using women as the as the example because I say mostly women will be, applying for these rights. So, you're brand new in a job and you're immediately in the position of, I suppose, having that right to request it, but you're also immediately in the position of maybe having to engage in a bit of conflict or head-to-head with your new employer, which will feel quite uncomfortable. Seamus, what do you think? Is it a bit of a double-edged sword, do you think?

Seamus: Yeah. I think that it is, and, you know, you wonder, does it, does it eradicate, you know, if when a when a job role is put out and it's a full time role and there there's certain expectations that are put down in relation to when you're required to be in work or days of the week or, you know, for things like job shares and things like that as well. You wonder how that all is going to come about and work, and I think that's a really important point that you could end up with someone that's saying, well, look, you know, once my foot's in the door here, once I start on day one, I can I can immediately start to, make these requests? I'm legally entitled to do so, but maybe not always pleasing for the employer. And there is that aspect in the mind. I think the mindset is always good. They're only just in the door, you know, and they'll get others saying, I've been here so long and I've never, you know, it you know, there are maybe they don't they don't know the culture in this place. This is, you know, this is not how we work. And so, there is there's the potential of all of that, but I think it importantly it's for ultimately for employers to get on board with it here. I've no doubt that you know you you're going to have to take a look at and review policies and procedures.

And I think that COVID has changed things in terms of what how we work, the way that we work. I think it's much harder for not for every workplace out there, but for a lot of workplaces, it's much harder to you to say no and not to justify your position around applications that are made. And I always think back to years ago I did a case in the in the tribunal and we thought we had fairly good justifiable grounds as to why an application for flexible working couldn't have been accommodated.

And we were wrong, and we were we were bluntly wrong in relation to it, and that was a number of years ago as to as to where matters right now and the ability to do work, and your ability to complete your job. And look, you see, you know, at the bottom of emails, my saying, you know, my hours aren't traditional working hours of nine to five. You know, don't feel the need to reply to me when you get an email at eleven o'clock. I mean, that's just how I work. I think it is I suppose there's always a bit of conflict happening because there's an element of a lot of that the beneficial stuff for workers coming through COVID that is that is seen to be being pulled back. And I think the election will be interesting because I've no doubt that, if you were working forward on a conservative government, I think there would be a larger rollback, in relation to those rights than what we might see if there's a labour government that come in as well.

But I think that definitely pressure on employers to get back to the office and all the rest, I think it'll stay firm for those that have been able to deal with it. But there's definitely pressure on employees, to get back to how things were. And I think that's a bad thing for family flexible working friendly, policies and procedures. So, I agree that it is ripe for, you know, litigation and equality commission and all those sorts of, great parts of my job that are that are the fun parts. Actually, there's like a little hair left in my head.

Christine: We've had a really good question actually. So how can employers effectively assess if, a flexible working request meets the needs of the business if it's requested so early on? I mean, I said I think definitely in my experience, you know, I do work flexibly, but I think once you're in and people see you're doing a good job and, you know, what time scales they're working to and stuff, it is easier for your employer to say yes, isn't it? Because they know what they're dealing with. But it's a bit tricky if you the person said I think it's difficult.

Mark: I think we're looking at two different things. I mean the statutory framework is the right to request and it's a very blunt instrument and what businesses have been saying over the last year post covid saying look we're not waiting on the legislation, there's a war on talent, we have issues with recruitment, we have issues with retention, so the second biggest headline after the salary on the job advert is the nature of the flexibilities that we offer. So, it's not being driven by the employees particular with job share or compressed hours or whatever. It's culturally being proactive ahead of that to say, we work flexibly, and this is what the offering is rather than we'll wait to see what the contents of your business case in the in the in the in the request or for flexible working is. So, you need to draw the distinction between the legal framework and the cultural framework within the organization because they're two very different animals and, more and more we are hearing of organisations saying, look, this this is being tried and tested. This is what works for us. It's a commonly requested form of flexible working as well, so it's about reciprocal flexibility.

You know, it works for the organisation, and it'll work for the individuals. So, you'll see very often now job adverts say we work habitually, there's a two-day requirement in the office and so it's effectively setting out the framework of what a flexible working request might look like anyway pre-emptively and that that that is the direction of travel. That is clearly the direction of travel. The legislation is now just only catching up.

Christine: Yeah. Yeah. Brilliant. Thanks very much. I am just really mindful of the time. I am going to do a few takeaways. Thanks, folks, for all your questions. I am sorry I did not get to all of them, but it's great when you send questions then. It keeps it lively.

So, takeaways from my perspective, the first one really is change is finally coming to Northern Ireland employment law. We are definitely going to get new legislation. It is coming. It is being widely discussed. It is going to happen. I am over the moon about that as you can tell. We just need to see what the content is going to be.

I'll be keeping an eye on that. So please, keep listening to the employment law eleven, and we will keep you up to date with that. Secondly, by the end of the year, we are going to have a clear direction of travel for Northern Ireland employment law. We are going to have loads of detail. So, my marketing team will kill me if I do not say this. This, genuinely, the best, way to keep up to date is to come along to Legal Island's Annual Review in November. As I said, it is in the Crowne Plaza in person or if you prefer to go online, we have it on Zoom.

So, we've got loads of great speakers as you can see from the slide there. We have Patricia Coulter, Mark's colleague from the Labor Relations Agency. She is going to be kicking off the day for us. And we've got Louise McAloon of Worthington finishing the day for us this year. We have got Jason Elliott, as always, doing the case law review. We have Kiera Fulton, and Christine Swale. And finally, we have got some guy called Seamus who will be coming along.

So, we are extremely excited to have Seamus back again, of course. And as I said, he will be doing a nice interactive session for us. So, there is a link in the chat there if you want to find out a bit more about annual review. And we have employment law at eleven exclusives. We have also confirmed Mary Kitson of the Equality Commission is going to be joining us at annual review. It is always great to hear direct from the commission and put, your questions to them. So, we are delighted to have Mary on board too.

So, next month, Seamus will be back on the fifth of July. He will be joined by my colleague, Julie Holmes, as I will be sunning myself at that stage. But, of course, I will be tuning in from the beach to hear Seamus and Julie in Employment Law at 11. But you can catch up in Employment Lord eleven on Spotify, Amazon Music, and Apple Podcasts. You can also connect with Seamus through LinkedIn. Mark is not on LinkedIn yet, but we are trying to put pressure into this.

Mark: I feel the pressure.

Christine: So definitely give me and Seamus a follow and let us know what else you would like to talk us about in Employment Law eleven. But thanks all for your time this morning. Thank you to Mark, for coming along. Thanks, as always to Seamus and to Arnold in the background for doing all the technical support. Thank you very much. Have a lovely Friday, and we'll catch up with you all soon.

Mark: Thank you.

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