For updates faster than NI goods going through Holyhead, it's the Friday Round-up!

This week's top 5:

1. How does a leap year impact national minimum wage?
2. How successful are return-to-office mandates?
3. Philosophical Beliefs in the Workplace
4. NI Law Society to hold special general meeting over minimum wage issue
5. How compassion could save your strained relationships

And in other news............... we're delighted to announce that Jason Elliott BL and Emma McIlveen BL will join Ian McFarland, Partner in Eversheds Sutherlands to bring you our 'HR Dilemmas' event on 28th February. Sign up and you'll get a chance to quiz Ian and Jason in our open Q&A at the end! Get your questions ready! More details HERE.

CONTENTS

1. Case Law Reviews
2. AI and Employment Law
3. Remote Working
4. 'Make childcare a priority'
5. Tribunal Fees in England & Wales
6. Philosophical Beliefs in the Workplace
7. Recruitment mistakes in tech sector holding back businesses
8. How does a leap year impact national minimum wage?
9. Just in Case You Missed It...
10. HR Developments
11. Employment News in the Media
12. GB Developments
13. Friends of Legal Island
14. Free Webinars This Month

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1. Case Law Reviews

Phoenix v The Open University [2024] Case No: 3322700/2021

Summary Description: Discrimination found when the claimant was not protected for holding gender critical beliefs leading to statements being made by others within the Department.

Claimant: Joanna Phoenix

Respondent: The Open University

Keywords: Unfair Dismissal; Direct Discrimination

Practical Guidance for Employers:

This case had a complex factual background with many separate allegations (too many to mention) being made.   The key point to be taken is the protection that can be given to those with gender critical beliefs and where those beliefs are not harming others then there should be sufficient protection in being able to have those views.  Failing to give adequate protection can lead to issues as seen here with discrimination and constructive dismissal.

Read the Review in full:
https://www.legal-island.com/articles/uk/case-law/2024/feb/phoenix-v-the-open-university-2024/

Lancashire & South Cumbria NHS Foundation Trust v Moon [2024] EAT 4

Summary Description: An individual operating independently from the respondent was still regarded as a worker for the purposes of a public interest disclosure claim.

Claimant: Moon

Respondent/Appellant: Lancashire & South Cumbria NHS Foundation Trust

Keywords:  Employment Status; Protected Disclosure

Practical Guidance for Employers:

This case yet again adds to the list of decisions on employment status.  This looks at a fairly unique role of an individual who requires independence under statute yet that does not mean that there can be no employment rights flowing in relation to the relationship between the worker and the organisation.  Employers, especially those who engage those who have to act independently under statute, should be mindful of this when considering the rights and responsibilities governing such a relationship.

Read the Review in full:
https://www.legal-island.com/articles/uk/case-law/2024/feb/lancashire--south-cumbria-nhs-foundation-trust-v-moon-2024/

These case reviews were written by Jason Elliott BL.  NI Tribunal decisions are available on the OITFET website:
http://www.employmenttribunalsni.co.uk/

If you have any queries or wish to comment on the reports please feel free to contact Jason at: jasondelliott@outlook.com

Jason Elliott was called to the Bar of Northern Ireland in 2013 and is the Associate Head of School of Law at Ulster University.  As a practising barrister, he has developed a largely civil practice representing individuals, companies and public bodies in litigation.  This covers a wide range of areas including personal injuries, wills and employment law. In terms of employment law, he has represented both applicants and respondents in the Industrial Tribunal.   At Ulster University, Jason lectures extensively on the civil areas of practise such as Equity and Trusts and delivers employment law lectures for both undergraduate and postgraduate students.

Remember: Our case law reviews are held in our case law section on our fully-searchable employment law hub website:
https://www.legal-island.com/employment-law-hub/case-law-search-page/

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2. AI and Employment Law

Workplace Regulation of ChatGPT - Have We Finally Got The Answer?

In this episode, Barry Phillips discusses the workplace regulation of Chat GPT. Listen now:
Workplace Regulation of ChatGPT - Have We Finally Got The Answer? (legal-island.com)

Can AI help to unveil hidden talent?

Finding the ideal candidate is like searching for a needle in a haystack – an exhausting and often fruitless effort for recruiters in today’s saturated labor market. Companies receive hundreds of applications per job posting, making it impossible to give each resume the careful consideration it deserves. As a result, many great candidates get overlooked due to the limitations of manual screening. However, the rise of artificial intelligence presents renewed hope for both recruiters and job seekers. Just as AI has revolutionized other industries through automation and augmentation, it has the potential to significantly streamline and enhance the resume screening process. More:
https://www.hrdconnect.com/2024/02/01/can-ai-help-to-unveil-hidden-talent/

Understanding the risks of employees using generative AI without appropriate guidance

In the recent case of Harber v The Commissioners for His Majesty’s Revenue and Customs, Ms Harber presented the court with nine previous rulings to support her case, all of which were found to be 'hallucinations' by a Generative AI programme. This highlights the need for employers to implement effective Generative AI policies to avoid the possible embarrassment and reputational damage of employees relying on fabricated information produced by Generative AI, among other risks. More from Mishcon de Reya:
https://www.mishcon.com/news/understanding-the-risks-of-employees-using-generative-ai-without-appropriate-guidance

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3. Remote Working

New research questions if hybrid working has created unrealistic expectations

32% of people say that flexible working locations are contributing to their reasons to seek out new employment. Nearly three quarters (73%) of UK employees are seeking a new job in 2024 and 90% have concerns about their current employment. Research from BHN (Blackhawk Network) published today also found 2 out of 10 of UK employees are thriving and enjoying their current role, whilst an additional 12% are completely burnt-out. Read in full:
https://www.hrdconnect.com/2024/02/01/new-research-questions-if-hybrid-working-has-created-unrealistic-expectations/

High performers dislike strict office attendance rules

High performers and millennials are the most likely to quit their jobs if firms enforce strict policies for a return to the office, research has found. On average, according to the survey by global consultancy Gartner, employees’ “intent to stay” declined by 8% with strict return-to-office mandates. But among high-performing employees, intent to stay fell by 16% with these mandates. Among millennials and women, the intent to stay declined by 10% and 11%. A number of surveys and announcements have indicated that more companies are pursuing policies of stricter office attendance. Research by Gartner last year found that half of employees said their company’s mandates prioritise what leaders want versus what employees need to do good work. More form Personnel Today:
https://www.personneltoday.com/hr/return-to-office-hybrid-work-women-millennials/

EY is latest to start monitoring attendance of UK employees

EY has become the latest to monitor its UK employees’ office attendance in order to see if staff are aligned with its hybrid working guidelines. According to the Financial Times, the Big Four firm is recording the swipe card entry of staff to show how frequent they are attending its offices. The data is being circulated at the senior level of the firm but it kept anonymised. The statistics would be used to influence teams to comply with the firm’s hybrid policy. More from City A.M.:
https://www.cityam.com/ey-is-latest-to-start-monitoring-attendance-of-uk-employees/

How successful are return-to-office mandates?

A research paper from University of Pittsburgh on return to office mandates claims managers used RTO mandates to reassert control over employees and blame employees as a scapegoat for bad firm performance. Interestingly, the findings didn’t support the argument return to office mandates increases firm values. The full paper from SSRN is here:
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4675401

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4. 'Make childcare a priority'

When Stormont politicians do finally return they'll have full in-trays - and some want childcare to be a priority. Families have criticised the gap between childcare provisions in Northern Ireland and the rest of the UK. The chief executive for the charity Employers for Childcare, Marie Marin, says that while the potential return of the executive is welcome news, Northern Ireland's "long overdue" new childcare strategy would have to be at the very top of its agenda. The BBC has more here:
https://www.bbc.co.uk/news/live/uk-northern-ireland-politics-68031910

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5. Tribunal Fees in England & Wales

Open consultation: Introducing Fees in the Employment Tribunals and the Employment Appeal Tribunal

The Westminster government have launched a consultation on the re-introduction of fees for Employment Tribunal and Employment Appeal Tribunal cases in England & Wales. You may recall that they were introduced previously but overturned following a challenge by UNISON. Find the consultation document here:
https://www.gov.uk/government/consultations/introducing-fees-in-the-employment-tribunals-and-the-employment-appeal-tribunal

And for UNISONs opinion..............

Unfair tribunal fees plan shows government is out of ideas, says UNISON

Commenting on the launch of a government consultation into tribunal fees, UNISON general secretary Christina McAnea said: “The government should be tackling the real issues the country faces, not trying to pick another fight with working people. The fact that ministers want to reheat a failed and illegal policy shows that this is a government that ran out of ideas some time ago and needs to step aside. Tribunal fees denied the poorest and most vulnerable access to justice. The only people who would benefit from their reintroduction are unscrupulous bosses." Read more:
https://www.unison.org.uk/news/2024/01/unfair-tribunal-fees-plan-highlights-government-is-out-of-ideas-says-unison/

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6. Philosophical Beliefs in the Workplace

Christian school worker who was sacked after criticising plans to teach trans issues to primary school kids will have her dismissal case heard by Court of Appeal judges

A school worker who claims she was sacked because of her Christian beliefs has won the right for her appeal against her dismissal to be heard by senior judges. Kristie Higgs was dismissed for gross misconduct by Farmor's School in Fairford, Gloucestershire, in 2019 after sharing Facebook posts criticising plans to teach LGBT+ relationships in primary schools. Mrs Higgs, supported by the Christian Legal Centre, took the school to an employment tribunal, arguing she had been unlawfully discriminated against because of her Christian beliefs but the school had denied dismissing the mother-of-two because of her religious beliefs and said she was sacked because of the language used in the posts. More from the Daily Mail:
https://www.dailymail.co.uk/news/article-13015565/Christian-school-worker-sacked-criticising-plans-teach-trans-issues-primary-school-kids-dismissal-case-heard-Court-Appeal-judges.html

The law is now clear: you can’t be punished for having gender-critical views. So why does it keep happening?

Susanna Rustin outlines her views on the importance of biological sex and how these are viewed in the context of the Equality Act and under the European convention on human rights in this article from the Guardian:
https://uk.news.yahoo.com/law-now-clear-t-punished-110005308.html

Join Seamus and Christine THIS MORNING when they'll discuss the implications of this very case!
https://attendee.gotowebinar.com/register/1955930466134401113?source=WR

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7. Recruitment mistakes in tech sector holding back businesses

The recruitment process is hindering businesses' access to the right tech talent and 32% are relying on non-technical specialists to hire recruits - meaning a quarter of candidates are hired without the right tech skills. Research conducted by Mobilunity found applications for technical roles are healthy - with firms across the board receiving an average of 15 applications per role, with startups topping the average at 18 per role. Belfast Live has more on this:
https://www.belfastlive.co.uk/business/recruitment-mistakes-tech-sector-holding-28530983

For help "Unlocking the HR Advantage - 2024 Recruitment Trends and Strategies", catch up on this WEBINAR where Ryan Calvert from MCS Group recently shared his valuable insights:
https://www.legal-island.com/articles/uk/resources/webinars/2024/january/unlocking-the-hr-advantage-2024-recruitment-trends-and-strategies---with-mcs/

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8. How does a leap year impact national minimum wage?

This is a leap year and, with 29 February falling on a Thursday, employers need to watch out for a possible breach of national minimum wage requirements. This means that, if you have workers paid at (or around) the National Minimum Wage, you need to be sure that the extra day of work doesn’t result in pay falling below the legal minimums (currently £10.42 per hour for workers aged 23 and over). Lewis Silkin has more here:
https://www.lewissilkin.com/en/insights/how-does-a-leap-year-impact-national-minimum-wage

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9. Just in Case You Missed It...

Job Market Downturn – How to Reassure Employees?

Charlotte Eakin of Think People offers her timely advice on this topical issue. Read it in full here:
https://www.legal-island.com/articles/uk/features/hr/2024/feb/job-market-downturn--how-to-reassure-employees/

What Needs to Change in our Schools in the New Year?

Frank Cassidy, former Principal & Regional Officer of ASCL gives his view. More here:
https://www.legal-island.com/articles/uk/features/education1/2024/what-needs-to-change-in-our-schools-in-the-new-year/

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10. HR Developments

The importance of managers: Why they (really) matter

Managers are the foundation of a company’s success. That might sound like a bold claim, but there’s research to back it up. In a recent State of the Manager 2023 Report, Culture Amp’s people scientists identified trends and insights from 257,234 managers at 3,304 companies and outlines three of the most notable benefits of managers to demonstrate why these positions are well worth an investment:
https://www.cultureamp.com/blog/importance-of-managers

Half of firms don’t consider people when making organisational changes

Organisational changes are commonplace, from changes in management structure and departmental responsibilities through to implementing a new organisation-wide IT platform. However, latest research reveals less than half of U.K. leaders (47 per cent) take their employees into account when deciding to enact business-wide changes. And just 44 per cent of U.K. senior leaders seek employee opinions as changes are rolled-out. HR Director has more:
https://www.thehrdirector.com/business-news/business-transformation/half-firms-dont-consider-eople-making-organisational-changes/

The full OC Tanner report is here:
https://www.octanner.com/global-culture-report

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11. Employment News in the Media

A law student recruited by a solicitor at the Playboy casino in London is owed almost £29,000, an employment tribunal has found. Employment Judge Krepski ruled that the unnamed claimant should be paid the sum because her purported employer, a solicitor who was also unnamed, was in breach of contract. The claimant was awarded £4,675 in unpaid wages and £18,000 in compensation for injury to feelings, as well as £5,000 in interest. More:
https://www.lawgazette.co.uk/news/playboy-dancer-recruited-by-solicitor-awarded-almost-30000/5118611.article

An Employment Tribunal ruled in the employer’s favour after finding the employer had no knowledge of a particular effect of the employee’s disability and, whilst the employee was treated unfavourably because of his disability, the method of conducting the interview was a fair and proportionate way to achieve the employer’s legitimate aim of a fair recruitment process. More from Nelsons:
https://www.nelsonslaw.co.uk/tribunal-dismisses-disability-discrimination-claims/

The Law Society of Northern Ireland is to hold a special general meeting next week amid discontent over its handling of an issue relating to the payment of the national minimum wage to trainee solicitors. The issue relates to the practice of firms not paying trainee solicitors during the period they spend studying and sitting exams at the Institute of Professional Legal Studies (IPLS), which HRMC believes is in breach of minimum wage legislation. More from Irish Legal News:
https://www.irishlegal.com/articles/law-society-ni-to-hold-special-general-meeting-over-minimum-wage-issue

Lloyds Banking Group, the UK’s largest domestic bank, has announced plans to cut approximately 1,600 jobs across its branch network as part of a strategic shift towards online banking. The decision comes in response to changing customer behaviours, with more customers choosing to manage their banking online. The bank, which also owns Halifax and the Bank of Scotland, has stated that the job cuts will be offset by the creation of around 830 new roles in an expanded ‘relationship growth’ team. HRD Connect has more:
https://www.hrdconnect.com/2024/01/29/lloyds-bank-announces-job-cuts-amid-shift-to-digital-banking/

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12. GB Developments

Employment law is a devolved power in Northern Ireland. The items in this section apply throughout GB only (Scotland and England & Wales) unless we specify they apply to NI.

New Equality Laws

On 1 January 2024, amendments to the Equality Act 2010 came into force. These amendments preserve, and in some cases, extend, a number of employment rights which would otherwise have ceased to be effective at the end of 2023 by virtue of the Retained EU Law (Revocation and Reform) Act 2023 (REUL). More from HRD:
https://www.thehrdirector.com/legal-updates/legal-updates-2024/new-equality-laws/

Acas reveals draft flexible working requests code

Three in 10 employees have seen an increase in staff working from home over the past 12 months, Acas has said as it publishes its draft flexible working code of practice. The draft code of practice, which is yet to receive parliamentary approval, outlines how a statutory flexible working request should be made and what employers should consider when handling a flexible working request. Personnel Today has more on this:
https://www.personneltoday.com/hr/acas-reveals-draft-flexible-working-requests-code/

Introducing fees in the employment tribunals and the employment appeal tribunal

The Ministry of Justice is holding a consultation on the reintroduction of modest fees in the Employment Tribunals (ET) and Employment Appeal Tribunal (EAT) in England and Wales, with the aim to contribute to the continuous improvement of His Majesty’s Courts and Tribunals Service and reduce the cost to the taxpayer to fund these services. The consultation closes at 11:59 on 25 March 2024 and you can find out more here:
https://www.gov.uk/government/consultations/introducing-fees-in-the-employment-tribunals-and-the-employment-appeal-tribunal

Train drivers will keep striking to ‘raise profile’ of pay dispute, says Aslef boss

Train drivers will keep striking to “raise the profile” of their dispute after half a decade without a pay rise, the Aslef union has warned, before another week of rolling strikes across England. Aslef’s general secretary, Mick Whelan, has said he believes that the government will make renewed efforts to see train companies use controversial new anti-strike laws, despite the union forcing a climbdown this time round. An overtime ban to disrupt services began from Monday.  The Guardian has more here:
https://www.theguardian.com/business/2024/jan/29/train-drivers-will-keep-striking-to-raise-profile-of-pay-dispute-says-aslef-boss-mick-whelan

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13. Friends of Legal Island

Finalists Revealed for 2024 Women in Business Awards After Record Year of Entries

From a record number of entries, some 90 individuals and organisations have been short-listed in the 2024 Women in Business Awards after a marathon judging session to select the winners and finalists.  Finalists include the Labour Relations Agency, Musgrave NI, PwC and Mount Charles Group!  Gala Presentation Night will be on 7th March.
Finalists revealed for 2024 Women in Business Awards after record year of entries – The Irish News

Queen's University receives Athena Swan Gold Award

Congratulation to Queen's University, Belfast who have become the first university on the island of Ireland - and only the second in the UK - to achieve the prestigious Athena Swan Gold Award. The award recognises their commitment to advancing gender equality across higher education and beyond.
Queen's University Belfast on LinkedIn: #lovequb

The Mediators' Institute of Ireland

TED Talk Club: Interesting Videos for Mediators

20th February 2024 at 1pm

The video will be "How compassion could save your strained relationships"

When personal relationships and ideological differences collide, the result can lead to strained relations -- or even years of silence and distance. Actor Betty Hart offers an alternative to cold shoulders and haughty hellos: compassion, and a chance for growth and change instead of losing important time with loved ones. Everyone is welcome to join the MII TED Talk Club, not just MII members, so feel free to spread the word. Panel members will be Ber Barry-Murray, Bob Cree-Hay and Anna Doyle and the session will be chaired by Scott Alexander. Click here for more info, and to register:

https://mediatorsinstituteofireland.clr.events/event/135205:mii-ted-talk-club-interesting-videos-for-mediators

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14. Free Webinars This Month

Employment Law at 11 - With O'Reilly Stewart Solicitors

TODAY! (11:00am - 11:45am)

Register for the next webinar in the series, during which Seamus McGranaghan of O'Reilly Stewart Solicitors and Christine Quinn from Legal Island will discuss:

1.            New Year, New Law - Working Time Regulations

The amended Working Time Regulations came into force on 1st January 2024 – they provide express rights to carry over unused holiday, codify the caselaw in the area and clarify what amounts to normal pay for the 4-weeks ‘EU leave’. Seamus will guide you through the amendments, introduce you to the new guidance just published in both NI and GB and highlight what you need to do going forward.

2.            Social Media Stresses

Another high-profile case in England, Higgs v Farmor’s School, once again shines a light on the issue of social media and clashing beliefs in the workplace. Our own home-grown social media cases – McDade and Shiels -illustrate social media and work is not just a problem in England and Wales, it’s very much a factor in dismissals here in NI. Seamus will talk you through the latest caselaw and steps that you can take now to mitigate risks in your organisation.

Join Christine and Seamus and up to 500 participants as they discuss your employment law queries live in our webinar series, “Employment Law at 11”.

Tell your HR colleagues and register individually or get your HR team around the computer and use the webinars as monthly group learning opportunities. Ask any questions (on employment law) and hear the answers live or catch up later when we upload both a recording and transcript of the discussion.

NOTE: – send questions in live during the webinars or drop a line in advance to webinars@legal-island.com. Anonymity assured.

Register Now:
https://attendee.gotowebinar.com/register/1955930466134401113?source=WR

Check out previous discussions:
https://www.legal-island.com/resources/any-questions-webinars/

Enjoy the weekend.

Legal-Island

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