Scott Alexander, Head of Learning and Development, and Rolanda Markey, Learning and Development Services Officer at Legal Island, discusses your Northern Ireland employment law questions and topical HR issues with Seamus McGranaghan from the employment team at O'Reilly Stewart Solicitors.

Topics covered in this month's webinar include:

• Retirement Dismissals
• Redundancy Selection
• Statutory Maternity Pay

Questions asked in this webinar include:

• It was reported this week, recently, that an Oxford University professor was forced to retire over his 70th birthday, based on a policy within the organisation. The tribunal found that he had been unfairly dismissed and discriminated against. Does this mean that you can't retire employees, that it's never going to be fair to retire employees?
• What are the rights of casual workers are in comparison to permanent employees, or to employees.
• When an employee poses a risk of redundancy, can you turn someone down for a redeployment option, following a formal interview process, if they do not pass the interview?

Don’t forget to visit the ‘Seamus Says – Employment Law Discussion’ section on the employment law hub, which provides answers to hundreds of employment-related questions addressed throughout this webinar series.

Transcript:

Scott: Happy new year, everybody. Welcome back to the webinar series with O'Reilly Stewart Solicitors. Seamus McGranaghan's here. My name's Scott Alexander. I'm from Legal-Island. I'm joined by my colleague, Rolanda Markey from Legal-Island. And this is the normally the first Friday of the month, "Employment Law at 11" webinar, but obviously with the new year last week we've put it off for a week. But the next one will be on the 7th of February. It will be on the first Friday of the month that we do that.

So welcome. If you haven't been here before, the format's fairly simple. We've received a number of questions from listeners and customers. So far, we've put a few of those anonymously to Seamus. So we've done some research here, we've reached out beforehand as well. You can ask questions live as we go through all the different questions. There's a little question box there. And if we can get through them, and they're relevant, we'll get through them. If not, we'll hold them back until next month along with other questions that we happen to get.

Poll Questions

Does your organisation operate a fixed retirement age?

Do you make provisions for Vegans or Vegetarians in your organisation?

Does your organisation utilise interviews as a redundancy selection tool?

IMPORTANT:  During this live webinar, we made a factual error during the discussion around the ethical veganism case. In order to avoid any confusion, we have edited the above recording and below transcript to remove this part of the discussion. We asked Joanne Lightburn, Senior Associate Solicitor at Jones Cassidy Brett to review the ethical veganism case in her article The Rise in ‘Philosophical Belief’ Discrimination Cases.

Age Discrimination and Retirement Dismissals

Rolanda: Our next question, then, another aspect of discrimination,

"It was reported this week, recently, that an Oxford University professor was forced to retire over his 70th birthday, based on a policy within the organisation. The tribunal found that he had been unfairly dismissed and discriminated against. Does this mean that you can't retire employees, that it's never going to be fair to retire employees?"

Seamus: Well, the short answer to that is, "No." I mean, there is certainly circumstances where it would be fair and justifiable to look at retirement. This was a specific case in relation to a professor in Oxford. Professor Ewart was his name. He was 70, and the policy was really to look at bringing in new blood into their department, and this idea of making space for that to happen.

Scott: So that's intergenerational fairness. And that has been ruled to be a fair reason to retire employees, to allow younger people to come through, and intergenerational fairness. Otherwise, older people hold all the jobs, younger people can't get on, and it causes problems in society. So it's an acceptable reason in general, but it wasn't, specifically, in this case.

Seamus: No, it comes down to the aspect that it always has to be justifiable, and you have to be looking at meeting a legitimate aim in relation to get into that process.

Scott: So they have a legitimate aim, but the problem here was it wasn't a proportionate response to achieve that legitimate aim. That was the issue.

Seamus: That's exactly the position. In Northern Ireland, we have our employment equality age regulations. In 2006, that would be the vehicle you would use, the legal vehicle, in these sorts of cases. But, going back to it, there are employers that do have policies and procedures that will put in a retirement age.

Scott: And we have 10% of the poll here who still use it.

Seamus: Yeah. There are certain jobs that people do that you could absolutely justify a retirement age, maybe even before the age of 65, you know, if you're doing a very sort of heavy-duty work, if you're involved in the fire service, or if you're a fireman or a firewoman. That's physically demanding, and you have to have certain physical fitness and physicality about you as well, not just necessarily your age, but there's other aspects of that as well. So you can see that there are completely justifiable times, whenever you can…………….

Scott: Well, even those ones there, it might be that particular role that you're not allowed to do after a certain age, or you have to pass a test every year, whatever you want to do. Now, the airline pilots as well, they're done at 66. That doesn't mean to say that you have to be kicked out of an organisation, necessarily, because you can't do that role.

Seamus: No. It would be remiss of an employer to do that on the basis that you've got a very experienced employee whose skills can be used elsewhere within the business. So, you know, you do have to look at those aspects of redeployment. The guidance for these things tends to be that there's a sort of annual review that takes place with the employee at a certain point, whenever they reach an age, and you do an assessment with the employee then, in terms of if it's physicality or their ability to do the job.

Sometimes, there's other issues arise in terms of motivation, and sometimes people just become bad at doing their job, where they don't keep up with developments in their role. In offices, we've gotten sort of very advanced on the technology, and sometimes that can catch, to be fair, some of our older employees out in relation to that. And there is a responsibility in the employer to provide training.

And rather than common rules and if we go back to the idea of moving longer, working employees there, and trying to bring in the fresher blood in relation to it, the justification on that, it can't just be because somebody's mighty bad at their job, and you want to get rid of them, and you're going to use this policy to do so. All of the same processes still apply in terms of identifying where the shortcomings are, notifying the employee what those shortcomings are, giving them training, giving them opportunity to improve. That's the process for dealing with that.

But when we come down to the retirement, it really, for me, it's a two-way street in terms of communication. And it's for the employer to meet with the employee to have discussions around how they feel in their job. And there's no problem with asking the employee, either, "What are your plans? What's your thoughts in terms of continuing?"

Sometimes employers shy away from that, and they're almost afraid to ask questions like that. But the business always has to forward plan. So it's about, really, communicating. The other sorts of things are that . . . You know, I was laughing when I read this, but someone had recorded some commentary about the ability to be in service until you die. And that's not anybody's goal, I don't think. It would be very few that would want to work right up until the point of where . . .

Scott: Die on the job?

Seamus:  . . . you know, when they die at the desk type thing. But, you know, those conversations are important. And, equally, sometimes, the employee could shy away from those conversations on the basis that they maybe feel, "Who's going to step in to do my job? There's nobody here to do it. I feel I'm obligated." So it's having those discussions.

But, certainly, there are exceptions there where you can look at enforcing retirement. You always have to have a solid, good reason of justification for it, and it always has to have a legitimate aim. You can look at the workforce planning, but also protecting the dignity of your workers also. You know, so those are the sort of thoughts I have around that.

Scott: There's a number of European court decisions on those types of things, the reasons you can do it. If you're one of those 10% that answered our poll and are pushing through, you still have to justify it. It's still got to be proportionate. The other ones that don't have a set retirement age, if you want to move the person on, you either go through your capability procedures and so on at some stage or you have those discussions.

There's nothing wrong with having a discussion with every single employee and saying, "Where do you see yourself in a year's time, two years' time, three years' time?" You can do that with everybody, not just the older workers being picked on, and you end up with an age discrimination claim because you're only looking at those. But the workforce planning issue's just a sensible thing to do. Nobody's going to hold that against you.

Seamus: It's a necessity. I suppose one of the big issues a lot of the time for these forced retirements, if you want to put it that way, is your sort of genuine health and safety concerns, as well as maybe the capability issues that might arise. But they don't necessarily always arise.

It could be a genuine health and safety aspect of it, and a lot of the times you might need to look at maybe bringing somebody in to look at health and safety in the workplace, you know, those occupational therapists, or getting medical evidence to say, "Well, this person isn't fit any longer to do the role." Those are the sort of pressures that are on the employer, I find, to get to the justification.

But, ultimately, you know, you're right. The retirement age has to be objectively justified, and the retirement age must have a legitimate aim. Enforcement of the retirement age, there must be a proportionate way of meeting that aim. So that's the general sort of legal ramifications of it.

Rolanda: I suppose, just one point, as you were saying earlier, that you don't try to dress up a capability dismissal as a retirement dismissal.

Seamus: Yeah, exactly.

Rolanda: Because that only creates confusion.

Seamus: No. And if you end up in a tribunal, most of the time, the truth comes out. If the truth doesn’t come out then the tribunal may bring it out instead. But, you know, one of the worst things you can have, I think, sometimes whenever you're going to defend claims in the tribunal, is somebody that just hasn't been straightforward and honest with the employee about the reason for terminating an employment contract.

Often, you find that if they just had have been straightforward, they wouldn't really have been doing anything wrong, provided they follow the fair process and all the rest.

Scott: Okay. You're listening to Scott Alexander and Rolanda Markey from Legal-Island, and we're here with Seamus McGranaghan from O'Reilly Stewart. We're taking your questions. And the third question, Rolanda, is?

Employment Rights of Casual Workers

Rolanda: Okay, so we've had a lot of case law over the last few months, and sort of workers, employees. So somebody sent a question in this week, and it's probably worth clarifying:

What are the rights of casual workers are in comparison to permanent employees, or to employees.

Seamus: Well, not necessarily a surprising question, because I can understand why there is confusion, although there has been a lot of developments recently in relation to case law and everything else. But it is confusing on something simple for them to try to get understanding of. Essentially, I always look at, you know, people talk about casual workers. There's no definition in law of a casual worker, and it doesn't exist.

What I always say is, "There's three main types of employment status. You have a worker, you have an employee, or you have someone that is self-employed." And casual workers are generally known as workers rather than employees, and that doesn't mean that they don't have any rights, as sometimes people think, "Oh, they're just casual. We can hire, fire, willy-nilly, and do what we want," and that's not the scenario.

So a worker's any individual who works for an employer, whether that's under a contract of employment or any other contract where the individual undertakes to do, personally, any worker services. And usually you'll find, for these sorts of workers, that you'll have agency workers, short-term casual workers, or freelance workers.

Ultimately, somebody may come in as a casual worker where you say, "Look, listen, I'm not guaranteeing you any hours." Sort of, maybe, more of a familiar term might be to have bank staff, where we have a list of staff that we can contact if we need. Key thing for those staff is always that there's no obligation on the staff member to come in to work. And you can offer them the hours, but they don't necessarily have to take it.

If you were offering the hours and they're refusing, and they were an employee, depending on the terms of the contract, you could possibly look at some sort of disciplinary issue with that. But this idea of there being mutually exclusive terms in relation . . . So if a worker gets a call and isn't available for work, I can simply say, "No, I pass." For me, that's more akin to the idea of the sort of worker, casual worker.

Scott: That's mutuality of obligation, and the employee normally doesn't have to offer this. You've got a series of bank employees, and you need mutuality of obligation in order to have an employee status there, okay? But it can be the situation where . . . It happens often enough, and often enough. And it's only lip service that you can turn it down or that it won't be offered. Those people can blend in and become employees over time, and that's the difficulty.

Assuming that there are workers who, for one reason or another, become employees, or you have workers who never become employees, what's the difference of their rights? Because self-employed people generally don't have many rights at all, okay? They certainly don't against the employer, because they're not employed.

So, a plumber that comes in at your house doesn't have the rights to take a civil claim against you. He doesn't have an employment right, because you don't employ them. They work for themselves. But a worker would have most of the European rights, for instance?

Seamus: Absolutely. The bottom line is that it tends to be that the longer this idea of a casual worker is in the workforce and working, the chances are that there will become . . . the basis for an employee-employer relationship. So, it is something that you have to look at, probably, individually. It's something that if you are focusing on this idea of a worker, and zero hours in work, and things like that, that you're keeping an eye on them to say if this person is either a worker or an employee, so it's important to do that. Those are the main differences.

Scott: What would they get? Assuming employees have all the employee rights, okay, assuming they've got a year's service to get unfair dismissal and so on, two years for redundancy, what is it that an employee would get over and above a worker?

Seamus: Well, the employee gets the protection under the contract of employment, and the employee gets the ability to bring a claim for unfair dismissal after their 52-week period. Where the casual worker, the worker, doesn't have that right in respect of it. Also, other things, talking about like redundancy entitlement if they've been working for two years. But, not under a contract of employment, they wouldn't have an entitlement to redundancy.

But all the other things that we talk about, I mean, there's an entitlement to national minimum wage, to their rest breaks, paid holidays, and protection from unlawful deduction of wages. They get maternity-paternity adoption rights also, and protection against less favourable treatment if they took a PID claim. Also, that they can't be discriminated against in addition to that. All of those standard terms that we would think about are what the worker receives also.

The main distinction might be that the employee would get the likes of, maybe, statutory sick pay, and/or company sick pay if it's there, and they'll get maternity adoption, paternity leave, and they'll get pay for that as well. The right not to be unfairly dismissed is obviously the big one, and the redundancy. Those are the main distinctions between an employee and and a worker.

Scott: Those are the written terms and conditions of employment, the written particulars that you would get under the old '94 order is it?

Seamus: Yeah, and your legal entitlement as an employee, to obtain written terms and conditions of employment.

Scott: That may be changing in England, I think it is, in April, isn't it? They're giving the right of workers to get the terms.

Seamus: To get the terms and conditions of employment as well.

Scott: Okay. Next question, Rolanda?

Alternative Employment in a Redundancy Situation

Rolanda: Okay. We were talking earlier about redundancy, or retirement, and we're just going to look a wee bit at redundancy. This is the question that came in this week, "Employers often have difficulty how to select people for redundancy, and sometimes use competition." So the question is,

"When an employee poses a risk of redundancy, can you turn someone down for a redeployment option, following a formal interview process, if they do not pass the interview?"

Seamus: Yeah. This is the idea where, essentially, you have a redundancy process. The employer really has two options that they're pulling together in the employees that might be affected by the redundancy. You know, they'll either do it one of two ways. They'll either say, "We're going to conduct a process whereby we apply criteria in relation to our affected employees," . . .

Scott: Some kind of matrix?

Seamus: Yes. " . . . and we'll work through that on the basis of retaining our best staff through objective criteria, as much as possible." The other way that employers can do it sometimes is they'll say, "Look, you know, we are reducing our numbers, and we're going to have four available positions, and there's eight of you, so we're going to conduct interviews. You can apply for these roles if you wish."

Some employees might voluntarily decide not to apply. But, "You can apply for the role if you wish," and you either pass or fail the interview with that process.

Scott: So, going back to the poll, there were about 40% of the people listening today would use that process. These are for a reason, because presumably it's on the face of objective and easier to do than a matrix that you have to do.

Seamus: In some ways, it allows the employer a little bit more flexibility than the matrix whenever they're going through the interview process, because it allows the employer really to test in terms of retaining the best employees going forward, is the idea behind it.

But, you know, ultimately, there is always an obligation on the employer, at redundancy, to look at redeployment. How that comes around, if there's an alternative suitable role that's available, you know, the employer is obliged to say to the employee, "There's a role there that you are entitled to have, because we're avoiding redundancy here."

But where there's a number of employees and there's only one role, the fair way is to open it up for competition. So, you're going to have winners and losers when it comes to those aspects.

Scott: That's assuming, of course, that there isn't already some kind of right to matrix in there. Because if I'm being made redundant, I've been told there's a matrix, and it's based on my attendance, and it's based on whether I've been disciplined, and it's based on whether I've reached a certain number of qualifications, and so on. Well, that might protect me.

So you come along and say you're going to interview me now, and I'm going to go, "Now, hold on a second. My contract says that you have to follow this. I'm filing a claim if you get rid of me." On the other hand, I suppose, if there's nothing there, the employer, assuming there are trade unions, or, indeed, if there's more than 20 people going, they're going to have to consult with the workforce on the best way to try and achieve that. So there may be some kind of negotiation or consultation in that.

But let's assume that you've got something in your contract, or you've got some kind of precedent that's been used often, that you're using some kind of interview process in this thing. Is it reasonable?

Seamus: I think, in the majority of circumstances, it is reasonable. Whether it's 100% fair or not is another idea. But I think that it is the standard that a lot of employers do use, so I wouldn't be over-critical of it. I certainly have advised it in the past myself. The other aspects of it are that, really, what you're saying is, "Is this employee suitable for this role that I have? I'm not quite sure, so I'm going to look at doing the interview process for it instead."

It's back to the point of, you know, "You should always be sure that your employee is suitable for the role, and you should be confident in that." If you've properly managed them during their employment, the answer should be that they should be. As employers deal with things in certain ways, and maybe they have objectives, and models, and things like that as well, this may be one of the models that they use.

Certainly, if there's a formal interview process, you absolutely need to go back to the basics of making sure that there's a procedure in place for it, that it's documented and it's recorded.

Scott: That you've trained the interviewers.

Seamus: Yes. And, you know, that if you are taking a shoddy process in terms of doing this, in order just to get rid of somebody, and you are acting unfairly, it's potentially going to catch up with you if it's not documented.

Rolanda: I suppose, in portion, I have a tendency to use it in situations where, yes, there's a reduction in roles, but perhaps created new roles, you know, they have combined roles . . .

Seamus: Thinking of restructure or . . . ?

Rolanda:  . . . or might feel a bit more appropriate to use an interview. But, as we were saying, it would be sort of unfair to just thrust it upon people without some sort of preparation, particularly if you have people who have been employed for 20, 25, maybe more, years and haven't had an interview in 20, 25 years. So, an employer who's going to take that approach should try and create a level playing field by ensuring that everyone is prepared.

Seamus: I think that's right. As Scott said, I think there should be something in the policy, procedure, or the contract about it. Or, if there's a precedent that's happened before about it, it's worthwhile for employers to be aware that, if they've had longstanding employees for 25, 30 years who haven't done an interview, it can be very daunting and very worrying for them, and you might need to look at levelling the playing field in terms of offering training, or some sort of interview skills, or practice runs, and things like that.

Scott: Yeah, there's a pretty good chance there that you're going to end up with a discrimination claim. Because the ones that would be the least good at interviews are likely to be the older workers, because they will have had fewer interviews. You're going to have people who, even if you use the matrix, have been off for a while. You're going to end up with maternity issues, or disability issues, or something like that.

The one bit of advice I tell anyone that comes to Legal-Island about redundancy is, "Do a non-ET1 through the LRA" You can never get redundancy selection right, unless you're closing the place, and then you've still got to get your consultation right. But, you know, "Do some kind of an agreement, whether it's a compromise or a non-ET through the LRA," because you're just not going to get it right.

Seamus: There's too many holes that you can pick in those circumstances, and we've all been there with them. We've dotted our Is and crossed our Ts the best that we can, and something comes out of the woodwork that you weren't expecting on individual circumstances. So absolutely, I agree. The facility is there to do it and use it, so why not?

Redundancy Consultation

Scott: Okay, we've got another question just come in on the little chat box. Oh, they're flying, so I'm going to bring that one down there. Yeah. On a similar matter, with regards to redundancy, "If you're about to begin a series of restructures . . . " And the question's just disappeared. Can we get that one back up there? Move up. Move up, yeah. Yeah, sorry about that. These questions are coming in so quickly that I can't actually get to read them. So, yeah,

" . . . restructures, and the number of employees potentially made redundant could be between 10 to 15, although the number at risk will be over 20. Would this need to be a collective consultation process?"

Seamus: The potential is 20?

Scott: No, there's 20 employees or more covered, but there's 10 to 15 that are being made redundant.

Seamus: Well, it's . . .

Rolanda: The numbers.

Seamus: . . . dependent on the number affected.

Scott: The number it affects? Well, there may be other changes. Because if you change terms and conditions, you're looking at restructuring of employees, that would fall under collective consultation requirements. So, if there's more than 20 contracts that are going to change, then it would be covered by consultation, wouldn't it?

Seamus: Yeah.

Scott: Okay. This one here . . .

Alternative Employment and Redundancy

Rolanda: I'll read it. "And the redundancy situation where roles are being made redundant and different roles are being created," we kind of mentioned that, "and you implement an interview process to fill the new roles, can you open this up to external candidates as well as those at risk of redundancy?"

Seamus: Well, you've always got an obligation on redundancy to protect your existing workforce. So, before you would open up to external, I think you have to go through the internal process. And if you weren't able to get a suitable candidate arising from that, then, potentially, go out externally. I think that you would have an issue if you did a redundancy process and your roles and you didn't let the internal staff apply for those first of all.

Rolanda: And I think sometimes HR people can feel a bit torn between their Equal Opportunities policies and ensuring all roles are advertised as widely as possible.  But it is important to remember your obligation at that point in time to existing staff.

Seamus: Yeah, to avoid redundancy. Your obligation in redundancy is to try to avoid it. And if there's roles there and you're putting them out, it's going to cause difficulties.

Statutory Maternity Pay

Rolanda: Okay, just moving on from redundancy, we had a question come in during the week. I think it would be a nice quick one,

"We have an employee who works in Northern Ireland but lives in the Republic of Ireland. Are we okay to assume they are entitled to statutory and maternity pay, if they qualify, based on service, etc.? And are we okay to accept a maternity confirmation from a Republic-filing GP rather than an NI, so not an MAT B1, but something else?"

Seamus: This happens regularly enough, particularly around sort of border regions and things like that as well. I know that there's a lot of people that will travel in, and they live, say, maybe in ROI, but they're working here. The bottom line is, from a strict legal point of view, it's generally the member state when we're talking about Europe, in which you're working, which pays your maternity benefits. So if you're working in the UK, it comes from your employer in the UK.

The problem will always be then that if your GP is in ROI, the form will look slightly different, but I would assume the information on the form will be very much the same. If a general practitioner confirms that you're pregnant, you're pregnant. Congratulations. I think that you have to take that on face value. It might look dissimilar to our normal form, but a quick Google will show you the form in ROI.

I think that you would be running into problems there if you would start to dispute that with the employee, unnecessarily. As we always say during these talks, "There's always the issue of presentation and communication with staff." And if we look at a lot of these issues, particularly around redundancies and things like that, the retirement, the key thing has to be always keeping the doors of communication open.

Unless you're going to go into a meeting and be accusatory or say something discriminatory in a meeting, you shouldn't really ever be afraid to have a conversation with your staff. Forward planning and business planning are key to the business. If the business isn't there, there's going to be no employment there, so you have to look at it from a priority point of view.

Rolanda: I was looking up guidance online in relation to this, and the guidance says that a new employee must provide proof of a pregnancy. This is usually a doctor's letter or a MAT B1, so it doesn't have to be a MAT B1.

Seamus: No, it doesn't have to be the form. Yeah.

Rolanda: It just requires some sort of proof.

Seamus: Absolutely, whether that's from the doctor, or from the hospital, or the midwife, or whatever it is. If the employee is coming forward to make that disclosure to you, then I think it needs to be accepted. Let's put it that way.

Returning to Work After Maternity Leave

Scott: Okay. We'll have one last question, Rolanda, but we'll have to move quickly. It's quite a long question.

Rolanda: Yeah, it's another maternity one, and it's really about someone returning from maternity leave to a job-sharing role and effectively being told that their job-sharing role is no longer available because, and for whatever reason, it hasn't worked out, that they have to come back full-time or to an alternative role part-time.

Seamus: The issue of returning from maternity pay, red flags are automatically up. The employer needs to tread carefully, and it needs to be cautious when it comes to it. You need to look at whether it is the ordinary maternity leave, whether the legal requirement is that you return back to your role as it was, or if it's into the additional maternity leave, that there can be some flexibility, but it has to be justifiable.

If this has been a job-share, sometimes it is difficult for employers to facilitate job-shares whenever one person leaves, and they have to find another. But the key thing is that the employer does have to take reasonable steps to try and resolve the situation. So just because one-half of the job-share is on maternity leave and the other one then leaves, it doesn't mean that there's an opportunity for the employer to say, "Well, forget the job-share. We'll just have a full-time role here now."

I think that the obligation is certainly on the employer to take steps to try to facilitate the job-share. And they're going to have to evidence that, whether that's through initial internal trawl. But the guidance certainly says that you must log an external trawl as well. It may be that you'll get someone that will say, "Well, look, I can do a job-share, but I can only do a Monday, Wednesday, Friday. I can't do a Monday, Tuesday, Wednesday."

Then is the time to go back to the employee and say, "This is the difficulty, this is the problem that we have," and talk to the employee about what the issue is there. But, key thing, keep the employee informed the whole way along. If the job-share partner leaves and the person's on maternity leave, you need to contact the . . .

Scott: The person that's on maternity leave.

Seamus: Yeah, and let them know that it's a developing situation, "We're going to manage it. We'll do our best to look at it. We have no guarantees. Bottom line is we can't take blood from the stone, but we'll do our best," and we have to have the evidence available to say that we have, as the employer, done as much as we can, essentially.

 But, ultimately, if all the steps are taken, we're not able to facilitate it, then it's the ability to go back to the employee and say, "We've done our best. We're going to have to look at alternative options here."

Casual Workers and Pension Entitlements

Scott: Yeah and keep them up to date. Final little question here came in here on the chat box,

"You mentioned that workers are entitled to holidays. Are they entitled to pension?"

Our answer is, "Yes, under the auto-enrolment rules." Seamus, we'll leave it there. There are various conditions, obviously, to get in them. If you have other pension questions, send them in, because we'll probably need a month to check up on them and advise. We're not pensions advisors here in any way or form whatsoever.

Okay, thank you very much, everybody, for listening. Thank you to Rolanda Markey for being along today, along with Seamus McGranaghan from O'Reilly Stewart. The next webinar we have coming up is this month, the 22nd of January. Mark McAllister from the LRA will be doing the case law review that he kind of covered at the annual review, but it's now kind of updated on that. So, you can log in there now. It's on the website. Just go to the events pages. It's the first tab.

The 7th of February, O'Reilly Stewart are back, with Seamus. Rolanda will be back here on the 7th of February. Again, you should be able to link on that on the website. So thank you very much, everybody, for listening. Oh, it's been a good new year so far, and we'll see you in February. Take care. Bye-bye.

Introductions

Scott:               Happy new year, everybody. Welcome back to the webinar series with O'Reilly Stewart Solicitors. Seamus McGranaghan's here. My name's Scott Alexander. I'm from Legal-Island. I'm joined by my colleague, Rolanda Markey from Legal-Island. And this is the normally the first Friday of the month, "Employment Law at 11" webinar, but obviously with the new year last week we've put it off for a week. But the next one will be on the 7th of February. It will be on the first Friday of the month that we do that.

                        So welcome. If you haven't been here before, the format's fairly simple. We've received a number of questions from listeners and customers. So far, we've put a few of those anonymously to Seamus. So we've done some research here, we've reached out beforehand as well. You can ask questions live as we go through all the different questions. There's a little question box there. And if we can get through them, and they're relevant, we'll get through them. If not, we'll hold them back until next month along with other questions that we happen to get.

Poll Questions

                        We usually start off with a little poll just to get us in the mood and set the scene, because it comes up to some of the questions that we're going to be dealing with.

                        So first poll question that we have here:

 "Does your organisation operate a fixed retirement age?" Just looking here, we're looking . . . Not many, now. It's gone down less than 20%, just 10% do, so some people do. We'll be taking questions. We're going to be looking at an employee who was forced to retire. So, yeah, around about 8%, 7% or so of the audience here. Ninety-odd percent don't have a fixed retirement age, Seamus.

                        Falling off, there's a big question about veganism, so the next question is on vegans:

"Do you make provisions for Vegans or Vegetarians in your organisation?" I'm transitioning as a vegan. I have been for the last year. I can't vegan, the trouble is I can't do without cheese, or fish, or chicken. But I'm getting there, I'm getting there, okay? I don't eat red meat, basically. But do they make provisions for me? "No," says 56%, and then you've got 45% do make some provision for vegans and vegetarians in the organisation. It's be nice to find out what those are. We might do some further research.

                        And the final question before we get into your questions, the final poll question, "Does your organisation utilise interviews as a redundancy selection tool?" And the answer is, 30%, "Yes." At the moment, 63%, "No." It's growing. We're around about 40% do, Seamus. Okay, so 40% would use interviews to select people for redundancies. Sixty percent, or thereabouts, would say no. Thank you very much to everybody who has voted there.

                        We usually tweet those results and send them on social media, so we'll deal with that. Rolanda, we have a question. What is the first question that we're going to deal with?

Impact of Philosophical Belief Case in Northern Ireland 

TAGS: DISCRIMINATION AND EQUALITY

Rolanda:          Well, it would be very difficult of us not to cover the vegan case, because it's being talked about a lot in the media this week. So I suppose what people want to know, Seamus, is,

"What impact will this case, the Veganism case, have in Northern Ireland, if any impact?"

Seamus:           Yeah, this has been an exciting week for employment law nerds. I think I got news of this on Monday, and I had had that up on social media, and I was very surprised then that there was a decision by the Tuesday. So I'm assuming, and we've had some discussions, we're assuming that there was some sort of pre-hearing review to look at the issue in the case. But, essentially, the employment, which we know was based in Norwich . . . I was reading that ethical veganism, and I think just we'll touch on that point, that it's ethical veganism, is a philosophical belief, and that is protected by law against discrimination.

                        So just background of the case for anybody that isn't familiar with it, or if maybe you heard about it but isn't aware of the details. So the claimant was a gentleman called Jordi Casamitjana, I think it is, against his former employer, which was the League Against Cruel Sports. It's an unfair dismissal claim, in essence. And the claimant alleged that he was dismissed for making disclosures that his employer had invested pension funds in firms that were involved in animal testing, and obviously this is an issue for anyone that has a belief in veganism.

                        And he alleged that he brought the issue to his employers, to management, and that nothing was done about it. And then, when he told his colleagues in work about the situation, he was subsequently sacked. So that is the key, essentially, in a nutshell.

Scott:               So he's saying this is really a whistleblowing case. And, of course, a whistleblowing case, you don't need any length of service requirements there, nor do you have to have a philosophical belief. He's saying that they were pulling the wool, pardon the pun, over the eyes of the other employees, because they had invested in these pension funds that used animal testing and such.

Seamus:           That's it.

Scott:               So it could've been a whistleblowing case anyway.

Seamus:           I would've thought so. Yeah.

Scott:               But this is also covered by the philosophical belief, which is under the Equality Act of 2010 in England, or in GB.

Seamus:           Which doesn't apply here in Northern Ireland. But, yeah, it does smell, certainly, of a PID-type claim and not that there was a disclosure. But there's no decision up yet, as we can see, regarding if it was a PHR (pre-hearing review).

Scott:               So we're just going on the press cuttings and so on.

Seamus:           So we're working off that. Hopefully, we'll get a bit more detail. It wouldn't necessarily surprise me if we don't get that much media attention about the dismissal aspect of the case. This seems to be the key legal issue out of this. But the finding was that ethical vegans could be entitled to similar legal protections in England as those that hold religious belief.

                        As we were saying there was a distinction and often, and one of the frustrations for Northern Ireland employment lawyers, I find, is that you'll get references and documents to the Equality Act of 2010 all the time, and it doesn't apply here. So what the Equality Act . . . it was thought to almost pull together all of the discrimination legislation and pull it into one act in 2010, but it didn't come into force in Northern Ireland.

                        And what we have is, we have our protection under FEA, under Fair Employment and protection legislation here in Northern Ireland. So that's what we rely on in relation to our political belief and our religious belief, our political opinion, I should say.

Scott:               So, we have political opinion instead of philosophical belief. So the religious parts are the same, and it's not a religion. Veganism isn't a religion. So, it's really, for this, and according to the tribunal, a philosophical belief in GB is the equivalent, in Northern Ireland, of a political opinion. And it'd be a hard stretch not to see that in Northern Ireland terms, given the way that this guy leads his lifestyle.

Seamus:           Absolutely. I mean, one of the key things here is . . . two points, really, to mention. But one of the key things here is that under the ruling, it covers ethical veganism, so it's not just simply someone saying, "I follow a vegan diet. I'm vegan. I, therefore, have protection." There's more to it than that. And as the idea of being an ethical vegan. Not to patronise anybody, but the basics of it are that you have to have a complete belief that you wouldn't have any involvement in animal parts at all.

Scott:               Hurting animals.

Seamus:           So, you won't wear wool, you won't wear leather, and you won't buy from companies that participate in animal testing or use animal products in any of their products. So, it's more to it. It has to be an overall belief. And it strikes me, as we see more and more news coverage, there is an aspect where veganism is included within the whole climate change process.

                        A lot of the demonstrations that you will see, and when they're interviewed, they do identify as being vegans. So, there's definitely a movement there, and I think it would be hard-pressed, really, at this stage for the majority of employers not to find an employee in their workplace that isn't motivated on the basis of veganism or something like it.

Scott:               So, taking that it's not just veganism, you've got to lead your life that way. So, again, I wasn't being that flippant, but I haven't really eaten red meat for a year or more, even. But that doesn't give me any protections. It's not political belief. It's just I've got a sore tooth.

Seamus:           Are you doing it for health interest?

Scott:               I'm doing it for health interest, which is a personal thing. So I wouldn't have that kind of protection. It would have to be much deeper than . . .

Rolanda:          It's like a complete lifestyle choice, similar to the previous case about the belief in the environment. But do you know the case a couple years ago where the guy was successful with a philosophical belief, because he had belief in recycling and the importance of all of that? So it has to be that really frames how you live your life.

Seamus:           As you said, it's lifestyle, it is the belief in that. And I suppose it's maybe for claimants to demonstrate that and to prove how they go about this.

Scott:               So, what might be the impact? So, this is a first-instance tribunal in GB. It doesn't set precedent. It could be overturned. But assuming they made the right decision to allow the case to go forward to full hearing, what are the implications, really, for an employer here who have somebody with an ethical belief in veganism in their employment? What would be the issues that might arise in employment?

Seamus:           Well, if the aspect of . . . you know, typically, with discrimination cases, that you're not treated any less favourably as a result of that belief on the basis of your political stance and relation to it. So that would have to be respected in the workplace.

                        You know, it's similar to all the previous cases that we've looked at, in the sense that the employer doesn't then have to rid itself and the office of every single piece of animal product, whether it's leather chairs, or looking at how certain products in their offices are used, and things like that. If someone comes along to your place of work and would like a job there, they have to be respectful of the business itself and what it looks to achieve.

Scott:               So, to that extent, it's a little bit like Sunday working. If you get a job which involves Sunday working, in general, you're going to have to work Sundays. And if you don't want to work Sundays, you get a job somewhere else, generally speaking.

Seamus:           Exactly, and there may be. I would imagine that if there's people that are politically motivated in that sense, that they would be the last place that they would genuinely take a job, if they didn't agree with how the business was being operated.

Scott:               But supposing somebody were to come up to the employer and say, "Look, okay, I'm an ethical vegan. I know that not everybody in this workplace is. But we've got a fridge, and I have a problem putting my lunch in that fridge, because there's meat products," or milk products, or whatever, in the fridge. Would they have to get a separate fridge or something? Is that . . . ?

Seamus:           I think potentially.

Scott:               You have to consider.

Seamus:           I think it does have to be considered, and I think that if, ultimately, you make a decision that there's a refusal in relation to that, it needs to be a well-thought-out, reasonable decision. Maybe it's down to that the business couldn't afford it, or something like that, or there isn't resources for it. But, I think, given the nature of the outcome on this case that it's definitely given food for thought, if I dare say it that way.

Scott:               I make the jokes here, Seamus, but there's a reason for that.

Seamus:           It would be similar in the aspect of, like, mother back from maternity that it's still expressing, and being provided by facilities, and relation to that. You could see how the argument could move along that way. I suppose, look, there could be a lot of people that would be maybe a little bit flippant and eye-rolling about these sorts of things. But when you do have a tribunal hearing saying, "Well, is it a philosophical belief?", that needs to be respected and taken into account.  But it's not a million miles away, as well.

                        I mentioned previously, whenever we were talking about other aspects, and protected characteristics, and things like that, the Randox case in 2015, the obese employee. The tribunal said obesity wasn't a protected characteristic, but any conditions arising from that would be. That was well-reported in the media at the time. And the same as someone that has alcoholism. It's not defined as a disability. But if there are conditions that are rising from it, then there could be a disability arising of it.

                        So I think the trend is, certainly, that we can see the expansion of discrimination law and the interpretation of the law broadening. I would think that that would be the trend moving forward. I don't see it being narrowed in any sense. But in the end, we have to come back to the fact that this is a decision of a tribunal in England. It is unlikely, because my understanding is that the employer didn't actually contest the issue. It was maybe just the tribunal had moved on its own motion to make a finding in this sense, and, "Let's look maybe for a PHR."

                        But if it's not going to be challenged by the employer, and it might even be appealed, and even if there's a position on the unfair dismissal, it might just focus on the unfair dismissal aspect. So develop an area, but with all of these things we always say, "Best to be cautious when it comes to these sorts of decisions," and you don't want to be the first, then in the tribunal in Northern Ireland, having these things.

                        But, certainly, the trend, for me, seems that there is a broadening of the scope in relation to discrimination. And I would be very cautious in terms of the climate change protests, and that being a political belief, and veganism following down the line. I was watching . . . it wasn't a documentary, but it was a TV program where there was vegans in Wales that were going into town in Wales to try and convince and to share the word in relation to veganism. I could see from that the sort of political motivation behind it.

                        And it was more than just saying, "Would you like to eat a vegan meal once a week?", or something like that. There was a political element to it as well. So, certainly, I think it's one to watch, and we'll see what develops from it.

Scott:               Okay, thank you very much. Our next question, Rolanda.

Age Discrimination and Retirement Dismissals

TAGS: DISCRIMINATION AND EQUALITY; POLICIES AND PROCEURES

Rolanda:          Our next question, then, another aspect of discrimination,

"It was reported this week, recently, that an Oxford University professor was forced to retire over his 70th birthday, based on a policy within the organisation. The tribunal found that he had been unfairly dismissed and discriminated against. Does this mean, I suppose, that you can't retire employees, that it's never going to be fair to retire employees?"

Seamus:           Well, the short answer to that is, "No." I mean, there is certainly circumstances where it would be fair and justifiable to look at retirement. This was a specific case in relation to a professor in Oxford. Professor Ewart was his name. He was 70, and the policy was really to look at bringing in new blood into their department, and this idea of making space for that to happen.

Scott:               So that's intergenerational fairness. And that has been ruled to be a fair reason to retire employees, to allow younger people to come through, and intergenerational fairness. Otherwise, older people hold all the jobs, younger people can't get on, and it causes problems in society. So it's an acceptable reason in general, but it wasn't, specifically, in this case.

Seamus:           No, it comes down to the aspect that it always has to be justifiable, and you have to be looking at meeting a legitimate aim in relation to get into that process.

Scott:               So they have a legitimate aim, but the problem here was it wasn't a proportionate response to achieve that legitimate aim. That was the issue.

Seamus:           That's exactly the position. In Northern Ireland, we have our employment equality age regulations. In 2006, that would be the vehicle you would use, the legal vehicle, in these sorts of cases. But, going back to it, there are employers that do have policies and procedures that will put in a retirement age.

Scott:               And we have 10% of the poll here who still use it.

Seamus:           Yeah. There are certain jobs that people do that you could absolutely justify a retirement age, maybe even before the age of 65, you know, if you're doing a very sort of heavy-duty work, if you're involved in the fire service, or if you're a fireman or a firewoman. That's physically demanding, and you have to have certain physical fitness and physicality about you as well, not just necessarily your age, but there's other aspects of that as well. So you can see that there are completely justifiable times, whenever you can…………….

Scott:               Well, even those ones there, it might be that particular role that you're not allowed to do after a certain age, or you have to pass a test every year, whatever you want to do. Now, the airline pilots as well, they're done at 66. That doesn't mean to say that you have to be kicked out of an organisation, necessarily, because you can't do that role.

Seamus:           No. It would be remiss of an employer to do that on the basis that you've got a very experienced employee whose skills can be used elsewhere within the business. So, you know, you do have to look at those aspects of redeployment. The guidance for these things tends to be that there's a sort of annual review that takes place with the employee at a certain point, whenever they reach an age, and you do an assessment with the employee then, in terms of if it's physicality or their ability to do the job.

                        Sometimes, there's other issues arise in terms of motivation, and sometimes people just become bad at doing their job, where they don't keep up with developments in their role. In offices, we've gotten sort of very advanced on the technology, and sometimes that can catch, to be fair, some of our older employees out in relation to that. And there is a responsibility in the employer to provide training.

                        And rather than common rules and if we go back to the idea of moving longer, working employees there, and trying to bring in the fresher blood in relation to it, the justification on that, it can't just be because somebody's mighty bad at their job, and you want to get rid of them, and you're going to use this policy to do so. All of the same processes still apply in terms of identifying where the shortcomings are, notifying the employee what those shortcomings are, giving them training, giving them opportunity to improve. That's the process for dealing with that.

                        But when we come down to the retirement, it really, for me, it's a two-way street in terms of communication. And it's for the employer to meet with the employee to have discussions around how they feel in their job. And there's no problem with asking the employee, either, "What are your plans? What's your thoughts in terms of continuing?"

                        Sometimes employers shy away from that, and they're almost afraid to ask questions like that. But the business always has to forward plan. So it's about, really, communicating. The other sorts of things are that . . . You know, I was laughing when I read this, but someone had recorded some commentary about the ability to be in service until you die. And that's not anybody's goal, I don't think. It would be very few that would want to work right up until the point of where . . .

Scott:               Die on the job?

Seamus:           . . . you know, when they die at the desk type thing. But, you know, those conversations are important. And, equally, sometimes, the employee could shy away from those conversations on the basis that they maybe feel, "Who's going to step in to do my job? There's nobody here to do it. I feel I'm obligated." So it's having those discussions.

                        But, certainly, there are exceptions there where you can look at enforcing retirement. You always have to have a solid, good reason of justification for it, and it always has to have a legitimate aim. You can look at the workforce planning, but also protecting the dignity of your workers also. You know, so those are the sort of thoughts I have around that.

Scott:               There's a number of European court decisions on those types of things, the reasons you can do it. If you're one of those 10% that answered our poll and are pushing through, you still have to justify it. It's still got to be proportionate. The other ones that don't have a set retirement age, if you want to move the person on, you either go through your capability procedures and so on at some stage or you have those discussions.

                        There's nothing wrong with having a discussion with every single employee and saying, "Where do you see yourself in a year's time, two years' time, three years' time?" You can do that with everybody, not just the older workers being picked on, and you end up with an age discrimination claim because you're only looking at those. But the workforce planning issue's just a sensible thing to do. Nobody's going to hold that against you.

Seamus:           It's a necessity. I suppose one of the big issues a lot of the time for these forced retirements, if you want to put it that way, is your sort of genuine health and safety concerns, as well as maybe the capability issues that might arise. But they don't necessarily always arise.

                        It could be a genuine health and safety aspect of it, and a lot of the times you might need to look at maybe bringing somebody in to look at health and safety in the workplace, you know, those occupational therapists, or getting medical evidence to say, "Well, this person isn't fit any longer to do the role." Those are the sort of pressures that are on the employer, I find, to get to the justification.

                        But, ultimately, you know, you're right. The retirement age has to be objectively justified, and the retirement age must have a legitimate aim. Enforcement of the retirement age, there must be a proportionate way of meeting that aim. So that's the general sort of legal ramifications of it.

Rolanda:          I suppose, just one point, as you were saying earlier, that you don't try to dress up a capability dismissal as a retirement dismissal.

Seamus:           Yeah, exactly.

Rolanda:          Because that only creates confusion.

Seamus:           No. And if you end up in a tribunal, most of the time, the truth comes out. If the truth doesn’t come out then the tribunal may bring it out instead. But, you know, one of the worst things you can have, I think, sometimes whenever you're going to defend claims in the tribunal, is somebody that just hasn't been straightforward and honest with the employee about the reason for terminating an employment contract.

                        Often, you find that if they just had have been straightforward, they wouldn't really have been doing anything wrong, provided they follow the fair process and all the rest.

Scott:               Okay. You're listening to Scott Alexander and Rolanda Markey from Legal-Island, and we're here with Seamus McGranaghan from O'Reilly Stewart. We're taking your questions. And the third question, Rolanda, is?

Employment Rights of Casual Workers

TAGS: PAY AND CONDITIONS OF EMPLOYMENT; A-TYPICAL WORKING

Rolanda:          Okay, so we've had a lot of case law over the last few months, and sort of workers, employees. So somebody sent a question in this week, and it's probably worth clarifying:

What are the rights of casual workers are in comparison to permanent employees, or to employees.

Seamus:           Well, not necessarily a surprising question, because I can understand why there is confusion, although there has been a lot of developments recently in relation to case law and everything else. But it is confusing on something simple for them to try to get understanding of. Essentially, I always look at, you know, people talk about casual workers. There's no definition in law of a casual worker, and it doesn't exist.

                        What I always say is, "There's three main types of employment status. You have a worker, you have an employee, or you have someone that is self-employed." And casual workers are generally known as workers rather than employees, and that doesn't mean that they don't have any rights, as sometimes people think, "Oh, they're just casual. We can hire, fire, willy-nilly, and do what we want," and that's not the scenario.

                        So a worker's any individual who works for an employer, whether that's under a contract of employment or any other contract where the individual undertakes to do, personally, any worker services. And usually you'll find, for these sorts of workers, that you'll have agency workers, short-term casual workers, or freelance workers.

                        Ultimately, somebody may come in as a casual worker where you say, "Look, listen, I'm not guaranteeing you any hours." Sort of, maybe, more of a familiar term might be to have bank staff, where we have a list of staff that we can contact if we need. Key thing for those staff is always that there's no obligation on the staff member to come in to work. And you can offer them the hours, but they don't necessarily have to take it.

                        If you were offering the hours and they're refusing, and they were an employee, depending on the terms of the contract, you could possibly look at some sort of disciplinary issue with that. But this idea of there being mutually exclusive terms in relation . . . So if a worker gets a call and isn't available for work, I can simply say, "No, I pass." For me, that's more akin to the idea of the sort of worker, casual worker.

Scott:               That's mutuality of obligation, and the employee normally doesn't have to offer this. You've got a series of bank employees, and you need mutuality of obligation in order to have an employee status there, okay? But it can be the situation where . . . It happens often enough, and often enough. And it's only lip service that you can turn it down or that it won't be offered. Those people can blend in and become employees over time, and that's the difficulty.

                        Assuming that there are workers who, for one reason or another, become employees, or you have workers who never become employees, what's the difference of their rights? Because self-employed people generally don't have many rights at all, okay? They certainly don't against the employer, because they're not employed.

                        So, a plumber that comes in at your house doesn't have the rights to take a civil claim against you. He doesn't have an employment right, because you don't employ them. They work for themselves. But a worker would have most of the European rights, for instance?

Seamus:           Absolutely. The bottom line is that it tends to be that the longer this idea of a casual worker is in the workforce and working, the chances are that there will become . . . the basis for an employee-employer relationship. So, it is something that you have to look at, probably, individually. It's something that if you are focusing on this idea of a worker, and zero hours in work, and things like that, that you're keeping an eye on them to say if this person is either a worker or an employee, so it's important to do that. Those are the main differences.

Scott:               What would they get? Assuming employees have all the employee rights, okay, assuming they've got a year's service to get unfair dismissal and so on, two years for redundancy, what is it that an employee would get over and above a worker?

Seamus:           Well, the employee gets the protection under the contract of employment, and the employee gets the ability to bring a claim for unfair dismissal after their 52-week period. Where the casual worker, the worker, doesn't have that right in respect of it. Also, other things, talking about like redundancy entitlement if they've been working for two years. But, not under a contract of employment, they wouldn't have an entitlement to redundancy.

                        But all the other things that we talk about, I mean, there's an entitlement to national minimum wage, to their rest breaks, paid holidays, and protection from unlawful deduction of wages. They get maternity-paternity adoption rights also, and protection against less favourable treatment if they took a PID claim. Also, that they can't be discriminated against in addition to that. All of those standard terms that we would think about are what the worker receives also.

                        The main distinction might be that the employee would get the likes of, maybe, statutory sick pay, and/or company sick pay if it's there, and they'll get maternity adoption, paternity leave, and they'll get pay for that as well. The right not to be unfairly dismissed is obviously the big one, and the redundancy. Those are the main distinctions between an employee and and a worker.

Scott:               Those are the written terms and conditions of employment, the written particulars that you would get under the old '94 order is it?

Seamus:           Yeah, and your legal entitlement as an employee, to obtain written terms and conditions of employment.

Scott:               That may be changing in England, I think it is, in April, isn't it? They're giving the right of workers to get the terms.

Seamus:           To get the terms and conditions of employment as well.

Scott:               Okay. Next question, Rolanda?

Alternative Employment in a Redundancy Situation

TAGS: REDUNDANCY

Rolanda:          Okay. We were talking earlier about redundancy, or retirement, and we're just going to look a wee bit at redundancy. This is the question that came in this week, "Employers often have difficulty how to select people for redundancy, and sometimes use competition." So the question is,

"When an employee poses a risk of redundancy, can you turn someone down for a redeployment option, following a formal interview process, if they do not pass the interview?"

Seamus:           Yeah. This is the idea where, essentially, you have a redundancy process. The employer really has two options that they're pulling together in the employees that might be affected by the redundancy. You know, they'll either do it one of two ways. They'll either say, "We're going to conduct a process whereby we apply criteria in relation to our affected employees," . . .

Scott:               Some kind of matrix?

Seamus:           Yes. " . . . and we'll work through that on the basis of retaining our best staff through objective criteria, as much as possible." The other way that employers can do it sometimes is they'll say, "Look, you know, we are reducing our numbers, and we're going to have four available positions, and there's eight of you, so we're going to conduct interviews. You can apply for these roles if you wish."

                        Some employees might voluntarily decide not to apply. But, "You can apply for the role if you wish," and you either pass or fail the interview with that process.

Scott:               So, going back to the poll, there were about 40% of the people listening today would use that process. These are for a reason, because presumably it's on the face of objective and easier to do than a matrix that you have to do.

Seamus:           In some ways, it allows the employer a little bit more flexibility than the matrix whenever they're going through the interview process, because it allows the employer really to test in terms of retaining the best employees going forward, is the idea behind it.

                        But, you know, ultimately, there is always an obligation on the employer, at redundancy, to look at redeployment. How that comes around, if there's an alternative suitable role that's available, you know, the employer is obliged to say to the employee, "There's a role there that you are entitled to have, because we're avoiding redundancy here."

                        But where there's a number of employees and there's only one role, the fair way is to open it up for competition. So, you're going to have winners and losers when it comes to those aspects.

Scott:               That's assuming, of course, that there isn't already some kind of right to matrix in there. Because if I'm being made redundant, I've been told there's a matrix, and it's based on my attendance, and it's based on whether I've been disciplined, and it's based on whether I've reached a certain number of qualifications, and so on. Well, that might protect me.

                        So you come along and say you're going to interview me now, and I'm going to go, "Now, hold on a second. My contract says that you have to follow this. I'm filing a claim if you get rid of me." On the other hand, I suppose, if there's nothing there, the employer, assuming there are trade unions, or, indeed, if there's more than 20 people going, they're going to have to consult with the workforce on the best way to try and achieve that. So there may be some kind of negotiation or consultation in that.

                        But let's assume that you've got something in your contract, or you've got some kind of precedent that's been used often, that you're using some kind of interview process in this thing. Is it reasonable?

Seamus:           I think, in the majority of circumstances, it is reasonable. Whether it's 100% fair or not is another idea. But I think that it is the standard that a lot of employers do use, so I wouldn't be over-critical of it. I certainly have advised it in the past myself. The other aspects of it are that, really, what you're saying is, "Is this employee suitable for this role that I have? I'm not quite sure, so I'm going to look at doing the interview process for it instead."

                        It's back to the point of, you know, "You should always be sure that your employee is suitable for the role, and you should be confident in that." If you've properly managed them during their employment, the answer should be that they should be. As employers deal with things in certain ways, and maybe they have objectives, and models, and things like that as well, this may be one of the models that they use.

                        Certainly, if there's a formal interview process, you absolutely need to go back to the basics of making sure that there's a procedure in place for it, that it's documented and it's recorded.

Scott:               That you've trained the interviewers.

Seamus:           Yes. And, you know, that if you are taking a shoddy process in terms of doing this, in order just to get rid of somebody, and you are acting unfairly, it's potentially going to catch up with you if it's not documented.

Rolanda:          I suppose, in portion, I have a tendency to use it in situations where, yes, there's a reduction in roles, but perhaps created new roles, you know, they have combined roles . . .

Seamus:           Thinking of restructure or . . . ?

Rolanda:          . . . or might feel a bit more appropriate to use an interview. But, as we were saying, it would be sort of unfair to just thrust it upon people without some sort of preparation, particularly if you have people who have been employed for 20, 25, maybe more, years and haven't had an interview in 20, 25 years. So, an employer who's going to take that approach should try and create a level playing field by ensuring that everyone is prepared.

Seamus:           I think that's right. As Scott said, I think there should be something in the policy, procedure, or the contract about it. Or, if there's a precedent that's happened before about it, it's worthwhile for employers to be aware that, if they've had longstanding employees for 25, 30 years who haven't done an interview, it can be very daunting and very worrying for them, and you might need to look at levelling the playing field in terms of offering training, or some sort of interview skills, or practice runs, and things like that.

Scott:               Yeah, there's a pretty good chance there that you're going to end up with a discrimination claim. Because the ones that would be the least good at interviews are likely to be the older workers, because they will have had fewer interviews. You're going to have people who, even if you use the matrix, have been off for a while. You're going to end up with maternity issues, or disability issues, or something like that.

                        The one bit of advice I tell anyone that comes to Legal-Island about redundancy is, "Do a non-ET1 through the LRA" You can never get redundancy selection right, unless you're closing the place, and then you've still got to get your consultation right. But, you know, "Do some kind of an agreement, whether it's a compromise or a non-ET through the LRA," because you're just not going to get it right.

Seamus:           There's too many holes that you can pick in those circumstances, and we've all been there with them. We've dotted our Is and crossed our Ts the best that we can, and something comes out of the woodwork that you weren't expecting on individual circumstances. So absolutely, I agree. The facility is there to do it and use it, so why not?

Redundancy Consultation

TAGS: REDUNDANCY

Scott:               Okay, we've got another question just come in on the little chat box. Oh, they're flying, so I'm going to bring that one down there. Yeah. On a similar matter, with regards to redundancy, "If you're about to begin a series of restructures . . . " And the question's just disappeared. Can we get that one back up there? Move up. Move up, yeah. Yeah, sorry about that. These questions are coming in so quickly that I can't actually get to read them. So, yeah,

" . . . restructures, and the number of employees potentially made redundant could be between 10 to 15, although the number at risk will be over 20. Would this need to be a collective consultation process?"

Seamus:           The potential is 20?

Scott:               No, there's 20 employees or more covered, but there's 10 to 15 that are being made redundant.

Seamus:           Well, it's . . .

Rolanda:          The numbers.

Seamus:           . . . dependent on the number affected.

Scott:               The number it affects? Well, there may be other changes. Because if you change terms and conditions, you're looking at restructuring of employees, that would fall under collective consultation requirements. So, if there's more than 20 contracts that are going to change, then it would be covered by consultation, wouldn't it?

Seamus:           Yeah.

Scott:               Okay. This one here . . .

Alternative Employment and Redundancy

TAGS: REDUNDANCY

Rolanda:          I'll read it. "And the redundancy situation where roles are being made redundant and different roles are being created," we kind of mentioned that, "and you implement an interview process to fill the new roles, can you open this up to external candidates as well as those at risk of redundancy?"

Seamus:           Well, you've always got an obligation on redundancy to protect your existing workforce. So, before you would open up to external, I think you have to go through the internal process. And if you weren't able to get a suitable candidate arising from that, then, potentially, go out externally. I think that you would have an issue if you did a redundancy process and your roles and you didn't let the internal staff apply for those first of all.

Rolanda:          And I think sometimes HR people can feel a bit torn between their Equal Opportunities policies and ensuring all roles are advertised as widely as possible.  But it is important to remember your obligation at that point in time to existing staff.

Seamus:           Yeah, to avoid redundancy. Your obligation in redundancy is to try to avoid it. And if there's roles there and you're putting them out, it's going to cause difficulties.

Statutory Maternity Pay

TAGS: PAY AND CONDITIONS OF EMPLOYMENT; DISCRIMINATION AND EQUALITY

Rolanda:          Okay, just moving on from redundancy, we had a question come in during the week. I think it would be a nice quick one,

"We have an employee who works in Northern Ireland but lives in the Republic of Ireland. Are we okay to assume they are entitled to statutory and maternity pay, if they qualify, based on service, etc.? And are we okay to accept a maternity confirmation from a Republic-filing GP rather than an NI, so not an MAT B1, but something else?"

Seamus:           This happens regularly enough, particularly around sort of border regions and things like that as well. I know that there's a lot of people that will travel in, and they live, say, maybe in ROI, but they're working here. The bottom line is, from a strict legal point of view, it's generally the member state when we're talking about Europe, in which you're working, which pays your maternity benefits. So if you're working in the UK, it comes from your employer in the UK.

                        The problem will always be then that if your GP is in ROI, the form will look slightly different, but I would assume the information on the form will be very much the same. If a general practitioner confirms that you're pregnant, you're pregnant. Congratulations. I think that you have to take that on face value. It might look dissimilar to our normal form, but a quick Google will show you the form in ROI.

                        I think that you would be running into problems there if you would start to dispute that with the employee, unnecessarily. As we always say during these talks, "There's always the issue of presentation and communication with staff." And if we look at a lot of these issues, particularly around redundancies and things like that, the retirement, the key thing has to be always keeping the doors of communication open.

                        Unless you're going to go into a meeting and be accusatory or say something discriminatory in a meeting, you shouldn't really ever be afraid to have a conversation with your staff. Forward planning and business planning are key to the business. If the business isn't there, there's going to be no employment there, so you have to look at it from a priority point of view.

Rolanda:          I was looking up guidance online in relation to this, and the guidance says that a new employee must provide proof of a pregnancy. This is usually a doctor's letter or a MAT B1, so it doesn't have to be a MAT B1.

Seamus:           No, it doesn't have to be the form. Yeah.

Rolanda:          It just requires some sort of proof.

Seamus:           Absolutely, whether that's from the doctor, or from the hospital, or the midwife, or whatever it is. If the employee is coming forward to make that disclosure to you, then I think it needs to be accepted. Let's put it that way.

Returning to Work After Maternity Leave

TAGS: PAY AND CONDITIONS OF EMPLOYMENT; DISCRIMINATION AND EQUALITY

Scott:               Okay. We'll have one last question, Rolanda, but we'll have to move quickly. It's quite a long question.

Rolanda:          Yeah, it's another maternity one, and it's really about someone returning from maternity leave to a job-sharing role and effectively being told that their job-sharing role is no longer available because, and for whatever reason, it hasn't worked out, that they have to come back full-time or to an alternative role part-time.

Seamus:           The issue of returning from maternity pay, red flags are automatically up. The employer needs to tread carefully, and it needs to be cautious when it comes to it. You need to look at whether it is the ordinary maternity leave, whether the legal requirement is that you return back to your role as it was, or if it's into the additional maternity leave, that there can be some flexibility, but it has to be justifiable.

                        If this has been a job-share, sometimes it is difficult for employers to facilitate job-shares whenever one person leaves, and they have to find another. But the key thing is that the employer does have to take reasonable steps to try and resolve the situation. So just because one-half of the job-share is on maternity leave and the other one then leaves, it doesn't mean that there's an opportunity for the employer to say, "Well, forget the job-share. We'll just have a full-time role here now."

                        I think that the obligation is certainly on the employer to take steps to try to facilitate the job-share. And they're going to have to evidence that, whether that's through initial internal trawl. But the guidance certainly says that you must log an external trawl as well. It may be that you'll get someone that will say, "Well, look, I can do a job-share, but I can only do a Monday, Wednesday, Friday. I can't do a Monday, Tuesday, Wednesday."

                        Then is the time to go back to the employee and say, "This is the difficulty, this is the problem that we have," and talk to the employee about what the issue is there. But, key thing, keep the employee informed the whole way along. If the job-share partner leaves and the person's on maternity leave, you need to contact the . . .

Scott:               The person that's on maternity leave.

Seamus:           Yeah, and let them know that it's a developing situation, "We're going to manage it. We'll do our best to look at it. We have no guarantees. Bottom line is we can't take blood from the stone, but we'll do our best," and we have to have the evidence available to say that we have, as the employer, done as much as we can, essentially.

                        But, ultimately, if all the steps are taken, we're not able to facilitate it, then it's the ability to go back to the employee and say, "We've done our best. We're going to have to look at alternative options here."

Casual Workers and Pension Entitlements

TAGS: PAY AND CONDITIONS OF EMPLOYMENT; ATYPICAL WORKING; PENSIONS

Scott:               Yeah and keep them up to date. Final little question here came in here on the chat box,

"You mentioned that workers are entitled to holidays. Are they entitled to pension?"

Our answer is, "Yes, under the auto-enrolment rules." Seamus, we'll leave it there. There are various conditions, obviously, to get in them. If you have other pension questions, send them in, because we'll probably need a month to check up on them and advise. We're not pensions advisors here in any way or form whatsoever.

                        Okay, thank you very much, everybody, for listening. Thank you to Rolanda Markey for being along today, along with Seamus McGranaghan from O'Reilly Stewart. The next webinar we have coming up is this month, the 22nd of January. Mark McAllister from the LRA will be doing the case law review that he kind of covered at the annual review, but it's now kind of updated on that. So, you can log in there now. It's on the website. Just go to the events pages. It's the first tab.

                        The 7th of February, O'Reilly Stewart are back, with Seamus. Rolanda will be back here on the 7th of February. Again, you should be able to link on that on the website. So thank you very much, everybody, for listening. Oh, it's been a good new year so far, and we'll see you in February. Take care. Bye-bye.