"You miss 100 percent of the shots you don't take" - Wayne Gretzky
This week's top 5:
- Two new ECNI Guides released
- Not a sackable offence to call your boss a d***, just don't do it twice!
- How to avoid Employee Disengagement in the Age of AI
- PSNI data breach: Almost 5,000 officers and staff in legal action
- Museum worker loses sex discrimination claim
And in other news...............Pivotal release new report on Economic Inactivity in Northern Ireland - well worth a read!
- Case Law Reviews
- AI and Employment Law
- Diversity & Inclusion
- Data Protection
- No difference between working from home and office, says HMRC chief
- Just in Case You Missed It...
- HR Developments
- Employment News in the Media
- GB Developments
- Free Webinars This Month
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1. Case Law Reviews
Maxwell v Tesco [2024] Case No: 8000251/2023
Summary Description:
Failure to make reasonable adjustments when wellness and disciplinary meetings were rescheduled to a time when the claimant’s Advocacy Support Worker was not available.
Claimant: Robin Maxwell
Respondent: Tesco Stores Plc
Keywords: Disability Discrimination; Reasonable Adjustments
Practical Guidance for Employers:
One of the most frequent questions at training events with HR professionals regarding disability discrimination is what is meant by reasonable when it comes to reasonable adjustments. This case provides some insight stating that it was unreasonable to reschedule the meeting for a time when the respondent was aware that the Advocacy Support Worker was not available. It is not that the meetings could not be held at all but that this would have been reasonable in the circumstances and bearing in mind the importance in allowing the claimant to make representations during the process.
Read the Review in full:
https://www.legal-island.com/articles/uk/case-law/2024/april/maxwell-v-tesco-2024/
British Airways v De Mello [2024] EAT 53
Summary Description:
A case applying the Supreme Court’s decision from Agnew v PSNI regarding holiday pay. Found that the overall context should be examined in terms of sufficient similarity for the deductions and looked at alongside any temporal issues rather than being looked at separately.
Claimant/Respondent on Appeal: T De Mello & Others
Respondent/Appellant on Appeal: British Airways Plc
Keywords: Holiday Pay
Practical Guidance for Employers:
This decision provides employers and HR professionals with an idea of how Agnew v PSNI will be interpreted by the Tribunal. In determining whether there is exposure for holiday pay claims – one must ask what the reason was for it not being included in normal pay and that the Tribunal will not be expected to go into granular detail but rather look at the overall factual context. Very simply, where it is shown that the deduction is as a result of a failure to include some aspect of normal pay into the holiday pay – then it is likely that the case will succeed as being sufficiently similar and regardless of the fact that there will be gaps between the holidays taken by the employee.
Read the Review in full:
https://www.legal-island.com/articles/uk/case-law/2024/april/british-airways-v-de-mello-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
Moderna, The Biotech Company, Swallows ChatGPT WholeI
In this week's episode, Barry Phillips asks whether Moderna is the first sizeable employer to implement ChatGPT throughout the organisation and, if so, whether others are likely to follow their lead.
How to avoid Employee Disengagement in the Age of AI
Today, AI’s reach extends across every aspect of HR, from recruiting and onboarding to employee performance evaluation and workplace solutions. Every day, new opportunities to make use of AI arise, and there are countless applications we haven’t even imagined yet. AI can be a valuable time-saver for data-led insights or repetitive tasks, freeing up headspace for HR professionals and company employees to focus on the bigger picture. Yet, with every new application, the need to maintain a human connection becomes more crucial. The HR Director has more:
https://www.thehrdirector.com/features/employee-engagement/avoid-employee-disengagement-age-ai-2/
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3. Diversity & Inclusion
School Teachers: A Guide on Recruitment & Selection after the commencement of the Fair Employment (School Teachers) Act (NI) 2022
This guide provides advice on the recruitment and selection of teachers in schools with particular reference to the Fair Employment & Treatment (NI) Order 1998
(FETO), the equality law that prohibits discrimination on the grounds of religious or philosophical belief and political opinion. Find the full Guide here:
https://www.equalityni.org/ECNI/media/ECNI/Publications/Employers%20and%20Service%20Providers/School-Teachers-Recruitment-SelectionGuide.pdf
Employing people with autism: a brief guide for employers
This guide has been produced by The National Autistic Society Northern Ireland (NAS), the Department for Employment and Learning (DEL), the Equality Commission for Northern Ireland (ECNI) and Employers for Disability NI (EFDNI). Read in full here:
https://www.equalityni.org/ECNI/media/ECNI/Publications/Delivering%20Equality/Employingpeoplewithautism.pdf
John Lewis job applicants get questions beforehand
John Lewis and Waitrose job applicants can now see interview questions beforehand in an attempt to make the process fairer. The department and supermarket chain has published questions for all job levels, external from customer assistants to directors on its website. The move comes as firms compete to hire the best people, with total UK job vacancies still higher than pre-Covid levels at almost a million. More here from the BBC:
https://www.bbc.co.uk/news/articles/c6pyqjm1219o
Employers have legal and moral imperative to support neurodivergent staff
A White Paper by Elizabeth Judson, head of client experience at AfterAthena, part of the Napthens Group, researches and explains the many benefits to employers of recruiting neurodivergent staff, while addressing challenges, barriers and misconceptions and providing expert guidance on how to create a truly neuroinclusive workplace in this article from HR Director:
https://www.thehrdirector.com/business-news/neurodiversity/employers-legal-moral-imperative-support-neurodivergent-staff/
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4. Data Protection
PSNI data breach: Almost 5,000 officers and staff in legal action
Almost 5,000 Police Service of Northern Ireland (PSNI) officers and civilian staff are involved in legal action following a major data breach. The details of around 9,500 workers were mistakenly published in response to a Freedom of Information request last August. The BBC has more on this story:
https://www.bbc.co.uk/news/uk-northern-ireland-68910068
Northern Ireland Data Protection Update 2024
Want to limit and eliminate data protection issues in your organisation? Legal Island's annual Northern Ireland Data Protection Update in association with Pinsent Masons is specifically designed to provide you with a comprehensive overview of the data protection issues that matter to HR professionals and employers in Northern Ireland. More info here:
https://www.legal-island.com/event/northern-ireland-data-protection-update-2024/
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5. No difference between working from home and office, says HMRC chief
There is no productivity difference between staff working at home and working in the office, HMRC permanent secretary Jim Harra has told MPs. At a Treasury Committee meeting, Harra was asked by MP Stephen Hammond if pressures on the department’s helpline services, the main topic of the session, could be eased by getting more civil servants to work from offices. The department’s policy is that civil servants should go into the office for 60% of their working week, or three days for a full-time staff member, the same level that ministers asked departments to enforce in November. Civil Service World has more:
https://www.civilserviceworld.com/professions/article/no-difference-between-working-from-home-and-office-says-hmrc-chief
ONS workers set to begin programme of industrial action in light of in-office demand
Civil servants who are members of the PCS union at the Office for National Statistics are set to defy the organisation’s newly introduced “40% of the week in the office” rule with a wave of industrial action. The action short of strike will see PCS members encouraged to ignore the new requirement from 8 May, with union leaders urging a return to the previous arrangements of attending offices when it suits staff and fits in with team needs. The ONS’s 40% office-attendance rule, which went live from the beginning of April, is less demanding than Cabinet Office minister John Glen’s diktat for 60% office attendance from other departmental staff. Public Technology has more on this:
https://www.publictechnology.net/2024/05/01/government-and-politics/ons-workers-set-to-begin-programme-of-industrial-action-in-light-of-in-office-demand/
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6. Just in Case You Missed It...
The Role of Leadership in Navigating Team Dynamics, Conflict and Organisational Success
In every organisation, conflict is not just inevitable—it's necessary. When properly managed, conflict can support team development, create innovative approaches and elevate performance to high levels. Within this article Sean Grant wants to explore conflict and models from the past that I feel are very appropriate to our modern approach.
https://www.legal-island.com/articles/uk/features/supplementary/2024/april/the-role-of-leadership-in-navigating-team-dynamics-conflict-and-organisational-success/
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7. HR Developments
12 Ways to crack the code to better mental health at work
According to NICE there are 13.7 million working days lost annually in the UK as a result of work-related stress, anxiety and depression costing approximately £28.3 billion. One in five working adults (20%) need to take time off work due to poor mental health caused by pressure or stress in the past year. Worryingly it is thought that 36% of workers believe that their organisations have done nothing to help stave off employee burnout. More from HR Director:
https://www.thehrdirector.com/business-news/mental-health/12-ways-crack-code-better-mental-health-work/
How to support a return to work during cancer treatment
Returning to work while undergoing or recovering from cancer treatment can be daunting. Cancer survivor Barbara Wilson outlines how employers should consider supporting an employee in this situation in this article from Personnel Today:
https://www.personneltoday.com/hr/cancer-return-to-work-support/
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8. Employment News in the Media
Junior doctors in Northern Ireland have said they will stage further strike action after pay talks with the Department of Health broke down. Two 48-hour walkouts will take place from 07:00 BST on 22 May to 07:00 on 24 May, and again from 6 June to 8 June. NI Junior Doctor Committee (NIJDC) chair Dr Fiona Griffin said doctors had been left with "no choice". The BBC has more:
https://www.bbc.co.uk/news/uk-northern-ireland-68942613
Four senior female BBC journalists who launched legal action against the broadcaster claiming a job application process was “rigged” have been denied equal pay, an employment tribunal has ruled. More:
https://inews.co.uk/news/female-bbc-presenters-denied-equal-pay-claim-3037476?ITO=newsnow
Suggesting that a women's looks might help the business is not 'flattering' and risks 'diminishing' her as it wouldn't be said to a man, an employment judge found. The ruling came in the case of an accounts manager who sued her employers after her boss told her to attend a meeting - because a male client liked 'pretty women'. The Daily Mail has more:
https://www.dailymail.co.uk/news/article-13364453/Calling-female-colleague-pretty-woman-work-sex-discrimination-tribunal-rules.html
A social worker who won a harassment claim against her employer and a professional regulator over the way she was treated after sharing her gender-critical beliefs has been awarded more than £58,000 in compensation. Rachel Meade, who worked for Westminster City Council, was suspended and subjected to a prolonged disciplinary process after a dossier of posts shared on her Facebook page was sent to regulator Social Work England, which placed her under a fitness-to-practise investigation. Read more on the case here: https://www.personneltoday.com/hr/social-worker-harassed-over-gender-critical-beliefs-wins-58k/
A male museum worker who brought a claim against his employer for sex discrimination has lost his case, with the judge finding that he was the person treating men and women differently. Jonathan McMurray worked for the Ulster Folk and Transport Museum as a part-time education assistant, alongside two other assistants at the same level. Soon after he joined the museum, there was an issue where some elderly men entered the museum while a school group was using a particular room for a workshop. One of his assistant colleagues explained to the men that children were using the hall, but told the tribunal that McMurray had “inserted himself” between her and the men, and undermined her. Personnel Today has more:
https://www.personneltoday.com/hr/museum-worker-sex-discrimination/
A staff member at a West Belfast school has been suspended after a social media video appears to show a pupil being sworn at during a class. The video, taken at St Mary’s Christian Brothers Grammar School, has been shared widely on social media. It appears to show a staff member telling a student to ‘change his f***ing attitude’ and ordering him to do ten push ups. Belfast Live has more on this story:
https://www.belfastlive.co.uk/news/northern-ireland/staff-member-suspended-belfast-school-29068316
It is not a sackable offence to call your boss a d***, so long as you do not do it for a second time, a court has ruled. An employee for a smoked fish company in Madrid was fired for calling his manager a ‘gilipollas’, which is a common Spanish swear word which loosely translates to ‘stupid d***’. He was told he must attend a meeting at 2.55pm, five minutes before the end of the shift, the Telegraph reports. The employee he would not be attending and was rushing to leave the office, when his manager warned him he would be punished for doing so. You can read more from Metro here:
https://metro.co.uk/2024/04/27/fine-call-boss-a-d-k-court-rules-20728788/
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9. 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.
Making the case for mediation
Acas research, Estimating the costs of workplace conflict, shows the cost of workplace conflict in the UK may reach nearly £30 billion per year. There is no escaping that that is a colossal sum to lose down the back of the national sofa, especially where a fair chunk of it is avoidable. Caroline Sheridan reflects on the business case for mediation:
https://www.acas.org.uk/making-the-case-for-mediation
Statutory code on dismissal and re-engagement to change terms of employment expected to come into force 18 July 2024
The statutory ‘fire and re-hire’ Code is now expected to be brought into force on 18 July 2024 and will apply in England, Scotland and Wales. The Code will not apply where an employer is only considering statutory redundancies (where the employer’s need for employees to do a particular type of work or at a particular place has reduced). However, if the employer is considering making changes to terms of employment (including as one of several alternative options, including statutory redundancies, in respect of the same employees) and it envisages that, if the changes are not agreed, it might opt for dismissal and re-engagement, the Code will apply and employers will need to do more by way of information and consultation than currently. More from Herbert Smith Freehills:
https://hsfnotes.com/employment/2024/04/24/uk-failure-to-contact-acas-before-proposing-dismissal-and-re-engagement-will-be-breach-of-statutory-code-under-revised-draft/
Tipping law introduction delayed until October
The introduction of a new law around employees’ tips has been pushed back from July to October. The Employment (Allocation of Tips) Act 2023, which makes it unlawful for employers to withhold tips from employees, was due to be enacted on 1 July 2024, but the Department for Business and Trade revealed it will now be implemented in October, once the changes have been approved by Parliament. Employers will be required to pass on tips and service charges to their staff. Businesses where tips are left more than occasionally will be required to have a tipping policy, and will be required to abide by a new statutory code of practice on fair and transparent distribution of tips. You can read the full story from Personnel Today:
https://www.personneltoday.com/hr/tipping-law-introduction-delayed-until-october/
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10. Free Webinars This Month
TODAY! (11:00am - 11:45am)
Today's topic is Harassment in the Workplace
“We need a shift in culture so that every single instance of sexual harassment is investigated and dealt with.” Tarana Burke, #MeToo founder
So says the introduction of the new guidance “Eliminating Sexual Harassment from the Modern Workplace” produced by the Labour Relations Agency (LRA) and the Irish Congress of Trade Unions.
Christine and Seamus will hear from Claire Webb of the Labour Relations Agency in what is sure to be an engaging discussion. Claire assisted in drafting the new guidance released just last month, so we’ll be hearing direct from her on its impact and implications. Join us and get up to date on the new guidance, best practice and what you can do to ensure your staff’s safety and reduce the risks to your organisation of costly claims.
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 your questions in advance to maria@legal-island.com. Anonymity assured.
Register Now:
https://attendee.gotowebinar.com/register/69006887711988822?source=WR
Check out previous discussions:
https://www.legal-island.com/resources/any-questions-webinars/
Enjoy the long weekend (and Good Luck if you're taking part in the Marathon!)
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