"Speak your mind, even if your voice shakes". Wands up for the late, great Dame Maggie Smith.

This week's top 5:

1. Annual Review Session of the Week: Harassment in the Workplace
2. Sinn Féin press officers provided references for a man being investigated for child sex offences
3. McDonald’s and supermarkets failed to spot slavery
4. Addiction: Supporting employees with alcohol and drug issues
5. UK Whistleblowing Update: three key cases

And in other news...............join Seamus and Christine this morning for Employment Law at 11 - Neurodiversity and the Law – What you need to know REGISTER HERE!

CONTENTS

1. Annual Review Session of the Week: Harassment in the Workplace 
2. Case Law Reviews
3. AI and Employment Law
4. PSNI 'disappointed' as £750k data breach fine upheld
5. New Civil Service inclusive language guide launched
6. McDonald’s and supermarkets failed to spot slavery
7. 9 in 10 employees think good managers are as important as salary compensation
8. UK Whistleblowing Update: three key cases
9. Domestic abuse ‘safe leave’ in Northern Ireland
10. Just in Case You Missed It...
11. HR Developments
12. Employment News in the Media
13. GB Developments
14. Health and Safety Developments
15. Free Webinars This Month

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1. Annual Review Session of the Week ⚓︎

Harassment in the Workplace

From sexual harassment in hospitals and fast-food chains to violence and abuse directed at retail and transport staff, it is evident that no workplace is exempt from harassment. HR professionals are often at the forefront of managing these issues, whether they arise from other employees, customers, or suppliers. Join Christine Swail of People Management Solutions as she provides guidance on how to address these challenges effectively and avoid common pitfalls. More:
https://bit.ly/ktniarel24

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2. Case Law Reviews ⚓︎

Irvine v South Eastern Health and Social Care Trust [2024] NIIT 51399/21

Summary Description: A refused request for home working did not lead to a breach of flexible working regulations, associative discrimination or constructive dismissal.

Claimant: Donna Irvine

Respondent: South Eastern Health and Social Care Trust

Keywords: Associative Discrimination; Unfair Dismissal; Flexible Working

Practical Guidance for Employers: 

Whilst the right to flexible working rules may be changing soon this demonstrates the rights and obligations when it comes to making those requests.  The Regulations place very clear obligations on the employee when making such an application which also include the need to bear in mind the impact on the employer and how such an impact could be overcome.   The fact that the alleged requests did not mention it was a statutory request meant that it did not have to be fully considered in line with the legislative requirement.

Read the Review in full:
https://www.legal-island.com/articles/uk/case-law/2024/october/irvine-v-south-eastern-health-and-social-care-trust-2024/

McLaughlin v Property Management Services (NI) Limited [2024] NIIT 23397/21

Summary Description: Constructive dismissal case dismissed where disciplinary process was insufficient in leading to repudiation of the contract.

Claimant: Aidan McLaughlin

Respondent: Property Management Services (NI) Limited

Keywords: Unfair dismissal; Constructive dismissal

Practical Guidance for Employers:

An interesting case demonstrating the different tests to be employed when it comes to constructive dismissal compared to ‘normal’ unfair dismissal.  The fact that there were some procedural flaws within the investigation was not fatal where the claimant had decided to resign, and it had to be based upon the contractual test.   This contractual test had to ask whether the correspondence and the disciplinary process was such to repudiate the contract – that was not the case and that was fatal to the claimant’s case.

Read the Review in full:
https://www.legal-island.com/articles/uk/case-law/2024/october/mclaughlin-v-property-management-services-ni-limited-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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3. AI and Employment Law ⚓︎

Battle of the Workplace LLMs

Barry Phillips asks whether we can expect a major battle soon for LLM supremacy in the workplace. But is it just a straight fight between ChatGPT and Co-Pilot? He thinks not. Catch up here:

https://www.legal-island.com/articles/uk/resources/ai-for-hr-weekly-podcast/2024/oct/battle-of-the-workplace-llms/

One-in-three workers want AI banned from the workplace

A new Cypher study on workers’ concerns and aspirations around using AI in the workplace found that while AI is reshaping job roles in a positive way to remove repetitive tasks, workplace digital divides between ages, gender and seniority are deepening. 4,543 workers aged 18 and above were surveyed from a cross-section of industries across the US, UK and Mexico, and found:

• 63% of workers say the introduction of AI technologies has already impacted the skills required to perform their role
• 52% believe it will either ‘totally transform’ or have a ‘major impact’ on their role within two years
• 38% expect they will need to retrain as their jobs will become obsolete
• 45% are concerned about their future job security

More on this from HR Director:
https://www.thehrdirector.com/business-news/ai/one-three-workers-want-ai-banned-workplace/

And on that note.............

How to get employees on board with AI adoption

HRLocker’s Crystel Robbins Rynne gives a step-by-step approach to ensuring employee buy-in when it comes to adopting AI in the workplace. Read more:
https://www.siliconrepublic.com/advice/ai-adoption-employees-trust-hr-advice

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4. PSNI 'disappointed' as £750k data breach fine upheld ⚓︎

The Police Service of Northern Ireland (PSNI) has said it is “extremely disappointed” after failing to have a £750,000 fine reduced over last year’s major data breach, the largest fine ever imposed on a public body in the UK. The breach involved accidentally releasing some personal details on all 9,400 officers and staff in August last year. The BBC has more on this story:
https://www.bbc.co.uk/news/articles/cg4q26vnrklo

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5. New Civil Service inclusive language guide launched ⚓︎

The Civil Service has developed a new Inclusive Language Guide to provide guiding principles and suggestions to help colleagues learn how they can be inclusive in the language they use for the purpose of creating a safe, supportive, welcoming and inclusive workplace culture for all. You can read more about it here:
https://www.finance-ni.gov.uk/publications/civil-service-inclusive-language-guide

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6. McDonald’s and supermarkets failed to spot slavery ⚓︎

Signs that modern slavery victims were being forced to work at a McDonald’s branch and a factory supplying bread products to major supermarkets were missed for years, the BBC has found. A gang forced 16 victims to work at either the fast-food restaurant or the factory - which supplied Asda, Co-op, M&S, Sainsbury’s, Tesco and Waitrose. Well-established signs of slavery, including paying the wages of four men into one bank account, were missed while the victims from the Czech Republic were exploited over more than four years. McDonald’s UK said it had improved systems for spotting “potential risks”, while the British Retail Consortium said its members would learn from the case:
https://www.bbc.co.uk/news/articles/c2kdg84zj4wo

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7. 9 in 10 employees think good managers are as important as salary compensation ⚓︎

A survey by Owl Lab found that with employees prepared to adopt bolder tactics to ensure they get greater flexibility, managers are under increasing pressure to manage hybrid expectations effectively. As a result, good management has climbed the ranks of work non-negotiables. This year, a supportive supervisor or “green flag boss” is almost as important (89%) as employee salaries (90%). More here from HRD Connect:
https://www.hrdconnect.com/2024/10/01/9-in-10-employees-think-good-managers-are-as-important-as-salary-compensation/

The full report is available here:
https://owllabs.co.uk/state-of-hybrid-work/2024

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8. UK Whistleblowing Update: three key cases ⚓︎

2024 has been a fruitful year in the UK for whistleblowing law so far, with three key cases employers should be aware of:

• Can an external job applicant qualify as a whistleblower?
• Can employees who report bullying and harassment of others rely on that report for a whistleblowing complaint?
• Can an employee be subjected to a detriment where the decision-maker did not know about their protected disclosure?

Littler Mendelson PC provides the answers in this article from Lexology:
https://www.lexology.com/library/detail.aspx?g=6310003f-2705-4ddd-a966-40b70961b23f&utm

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9. Domestic abuse ‘safe leave’ in Northern Ireland ⚓︎

The Department for the Economy in Northern Ireland has published a public consultation on the framework for the introduction of safe leave for employees experiencing domestic abuse. In 2022, the Northern Ireland Assembly passed the Domestic Abuse (Safe Leave) Act, which will entitle victims of domestic abuse to ten days paid safe leave each year (funded by the employer) for the purpose of dealing with issues related to domestic abuse. This consultation invites views on the practical measures necessary to implement the Act and informs the public about the regulations the Department plans to introduce to enable employers to effectively support employees taking this leave. More:
https://iuslaboris.com/insights/domestic-abuse-safe-leave-in-northern-ireland/

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10. Just in Case You Missed It... ⚓︎

First Tuesday

Chris Fullerton of Arthur Cox offers his advice on some more burning issues:

1. If an employee issues a verbal resignation, but their contract requires a written resignation, will their resignation still be effective in law?https://www.legal-island.com/articles/uk/features/q-and-a/2024/october/if-an-employee-issues-a-verbal-resignation-but-their-contract-requires-a-written-resignation-will-their-resignation-still-be-effective-in-law/
2. What is the legal position when a contract of employment states the incorrect salary?
   https://www.legal-island.com/articles/uk/features/q-and-a/2024/october/what-is-the-legal-position-when-a-contract-of-employment-states-the-incorrect-salary/
3. Do employers have to grant a request by an employee to work part-time?
   https://www.legal-island.com/articles/uk/features/q-and-a/2024/october/do-employers-have-to-grant-a-request-by-an-employee-to-work-part-time/

 Flexible working requests across GB and NI: How do I Handle it?

This month’s problem concerns:

“Our business operates across Great Britain and Northern Ireland. Following the changes on flexible working requests in GB, we updated our Employee Handbook across the business. A new-start in NI has made a flexible working request, stating that it is their “day one right.” As this employee is based in NI, we are unsure about how to manage their expectations. How do I handle it?” Emma Doherty of Tughans shares her expert insights:
https://www.legal-island.com/articles/uk/features/how-do-i-handle-it/2024/september/flexible-working-requests-across-gb-and-ni-how-do-i-handle-it/

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11. HR Developments ⚓︎

Three quarters of employees would sacrifice salary for a four-day week, report finds

Nearly three quarters (73 per cent) of employees would be willing to sacrifice some of their salary to work a four-day week, up from 65 per cent in 2023, Owl Labs’ ‘State of Hybrid Work’ report has revealed. The poll of 2,000 full-time employees in the UK also found that a similar proportion (76 per cent) would take a pay cut to have flexible working hours, while 74 per cent prefer hybrid work over being in the office full-time or working entirely remotely. If they were forced to go back to the office, nearly half (47 per cent) of workers said they would look for a new job which offered more flexibility in where and when they work. People Management has more here:
https://www.peoplemanagement.co.uk/article/1890393/three-quarters-employees-sacrifice-salary-four-day-week-report-finds

Addiction: Supporting employees with alcohol and drug issues

The pandemic and the cost-of-living crisis that followed have fuelled a huge surge in the number of employees battling with alcohol and drug dependencies. Personnel Today looks at how employers can identify and support staff who may be struggling with addictions:
https://www.personneltoday.com/hr/alcohol-drug-addiction-supporting-employees/

Interested in supporting employees with addiction issues in your workplace? Join Ian McFarland of Eversheds Sutherland and Professor Anne Campbell, QUB in their session " Breaking the Habit: Overcoming Substance Misuse in the Workplace" at Legal Island's Annual Review of Employment Law on 27th November 2024.

Substance misuse presents serious legal risks for employers, affecting both safety and productivity. For HR professionals, it's vital to recognise the signs of substance misuse and respond effectively. This session will equip you with the knowledge and strategies needed to support your team and ensure a safe workplace environment. Read more:
https://bit.ly/ktniarel24

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12. Employment News in the Media ⚓︎

First Minister Michelle O’Neill said she was “aghast and horrified” when she learned two Sinn Féin press officers provided references for a man being investigated for child sex offences. The two press officers - who have since resigned - provided the references for their former colleague Michael McMonagle when he applied for a new job after leaving Sinn Féin while under investigation for the offences. More here from the BBC:
https://www.bbc.co.uk/news/articles/ceqn24ve1pzo

Lesbian social worker, Elizabeth Pitt, was harassed after she voiced gender critical views during a video call for the LGBTQ+ employee group at Cambridgeshire County Council, a tribunal ruled on 19 August. Pitt told the tribunal members of the council were bullying her by portraying her as an “oppressor” and “transphobe”. Employment judge Michell ruled Pitt was harassed as a result of colleagues taking issue with what they called her “nasty opinions”. The tribunal awarded Pitt £55,910 for being subjected to detriment and £8,000 in legal costs. Read:
https://www.hrmagazine.co.uk/content/news/social-worker-bullied-for-gender-critical-views-tribunal-rules

A solicitor who described a Citizens Advice policy to award hard-working staff their birthday off as ‘dubious’ has lost her claim for constructive unfair dismissal. The claimant, Sarah Guest, brought a complaint of constructive unfair dismissal to the employment tribunal in Manchester, relying on an alleged breach of the implied duty of mutual trust and confidence. More from Personnel Today:
https://www.personneltoday.com/hr/dubious-birthday-leave-guest-v-citizens-advice/

A Christian school worker from Gloucestershire had her free speech rights "violated" and faced "direct discrimination" when she was dismissed over sharing social media posts about LGBT+ relationships teaching, the Court of Appeal has been told. Lawyers for Kristie Higgs, 47, claim she lost her role at Farmor's School because of the "unlawful stereotyping" of her beliefs over "gender and sexual ethics" as "homophobic and transphobic". Higgs worked as a pastoral administrator and work experience manager, was fired after sharing Facebook posts criticising plans to teach LGBT+ relationships in primary schools. On Wednesday, her lawyers asked senior judges to uphold her claim against the school over alleged unlawful discrimination, in the latest stage of her years-long legal battle. You can read more here from Gloucestershire Live:
https://www.gloucestershirelive.co.uk/news/cheltenham-news/dismissed-gloucestershire-school-worker-free-9600101

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13. 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.

Five key questions on the Employment Rights Bill

Employment law experts suggest that the government is likely to publish the Employment Rights Bill on 10 October, living up to its promise of delivering legislation (at least in draft) within 100 days of coming into power. Many of the probable elements of the Bill have been flagged already, having first appeared as pledges in the Labour Party’s election manifesto in its Plan to Make Work Pay or its New Deal for Working People. Catch up here:
https://www.personneltoday.com/hr/employment-rights-bill-2024-preview/

CIPD: Proposed changes to GB unfair dismissal rules risk more insecure work

**NB: while this article states throughout that the changes apply to the UK, it in fact means GB only. As employment law in NI is devolved, these changes do not apply here**

October will see the introduction of the UK Government’s Employment Rights Bill in GB (not NI) and a range of measures that collectively could transform how the labour market works in the GB. To provide a benchmark against which to measure the impact of these changes, the CIPD has assessed GB's employment rights framework and key labour market outcomes against other OECD economies. Our findings show that while the UK has a comparatively low level of employment protection, it performs relatively well on a range of labour market outcome measures:
https://www.cipd.org/uk/views-and-insights/thought-leadership/insight/proposed-changes-risk-insecure-work/?utm

Unions fear not all staff will get fair share as tip-sharing law comes into force in GB

Under the new rules in GB 100% of tips – by cash or card – and any service charge levied on customers must be passed on to staff working in restaurants, cafes, hotels, hairdressers or taxi firms. However, the Unite union said some waiting staff would remain out of pocket, including workers in Northern Ireland where legislation has yet to be introduced by the Stormont executive. The Guardian has more here:
https://www.theguardian.com/business/2024/oct/01/uk-unions-fear-not-all-staff-fair-share-tip-sharing-law

Restaurants ponder price increases as new tip-sharing law comes into force

GB Restaurants are wondering whether to put up food and drink prices or risk legal action over the sharing of tips and service charge payments with workers as new legislation came in this week for businesses in England, Wales and Scotland. Taxi firms, hairdressers and hotels, as well as restaurants, pubs and cafes, will be banned from withholding tips paid by customers – whether in cash or by card – and service charge payments from workers. The Employment (Allocation of Tips) Act 2023 came into effect on 1st of October, more than eight years after a ban was first proposed. More from Yahoo Finance:
https://uk.finance.yahoo.com/news/restaurants-ponder-price-increases-tip-140006683.html

ISP employee arrested after ‘cyber vandalism’ targeted at station WiFi

A man has been arrested following an investigation into an act of “cyber vandalism” which hit train stations across the UK. The cyber incident affected a public WiFi network across 19 UK railway stations, where passengers attempting to access connectivity were met with a screen displaying Islamophobic messages about terror attacks in Europe. The British Transport Police (BTP) announced that a man has been arrested on suspicion of offences under the Computer Misuse Act 1990 and the Malicious Communications Act 1988 and that the man in question is employed by GlobalReach Technology, a company “provides some WiFi services to Network Rail”. More from Public Technology:
https://www.publictechnology.net/2024/09/30/uncategorized/isp-employee-arrested-after-cyber-vandalism-targeted-at-station-wifi/

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14. Health and Safety Developments ⚓︎

Tandragee based concrete products manufacturer fined following the death of worker

Following an investigation by the Health and Safety Executive for Northern Ireland (HSENI), Taranto Limited has been fined £90,000 at Newry Crown Court after pleading guilty to a single health and safety offence. The investigation followed the death of Matthew Biggerstaff, a production operative employed at the company’s main production site. The company failed to conduct a suitable task specific risk assessment and implement a safe system of work including the use of appropriate control measures to mitigate the risk. You can read more here:
https://www.hseni.gov.uk/news/tandragee-based-concrete-products-manufacturer-fined-following-death-worker

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15. Free Webinars This Month ⚓︎

Employment Law at 11 - With O'Reilly Stewart Solicitors

Neurodiversity and the Law – What you need to know

THIS MORNING! - 11am to 11.45am

Is your organisation fully compliant with legal requirements around neurodiversity?

Championing a neuro-inclusive workplace is an increasingly important part of a diverse workforce here in NI. With the NI Civil Service leading the charge with the release of their “Neurodiversity: NICS Line Manager’s Toolkit”, neurodiversity is never far from the HR headlines.

Join Employment Law at 11 regulars Christine Quinn of Legal Island and Seamus McGranaghan of O’Reilly Stewart as they unpack the legal obligations and best practices for supporting neurodivergent employees.

Seamus will explore:

• What are the legal rights of neurodivergent employees under NI employment law?
• How can employers meet their duty to provide reasonable adjustments?
• What are the legal risks of failing to accommodate neurodiversity in the workplace?

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 FOR FREE:
https://attendee.gotowebinar.com/register/3355739615859526229?source=WR

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

Enjoy the weekend.

Legal-Island