Like these resilient ballerinas, here's the latest round up to help keep you 'en pointe' with the most current employment law updates and news..............
This week's top 5:
- Raft of new (useful!) guidance published in GB
- Information Commissioner’s Office seeks views on accuracy of generative AI models
- Why 'selfless' workers are professionally exploited
- Saying 'playing the race card' is racist
- UK businesses record a 55% increase in sick leave
And in other news...............Our new event, "Unlocking Holiday Pay", on 20th June 2024, will help you cut through the noise, avoid the academic discussion and finally get clarity on how to do holiday pay calculations. Book HERE.
- Case Law Reviews
- AI and Employment Law
- Supreme Court finds UK Trade Union law incompatible with Convention Rights
- Women's Health in the Workplace
- Diversity & Inclusion
- Economy
- Sickness Absence
- 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
Miller v JW Wheatley & Son Ltd [2023] CSOH 84
Summary Description: A case in which the claimant was regarded as an independent contractor so the subcontractor on a site was not vicariously liable when the claimant suffered an injury.
Claimant: Miller
Respondent: JW Wheatley & Son Ltd
Keywords: Workplace Accident; Vicarious Liability
Practical Guidance for Employers:
Whilst this case relates to a workplace accident and vicarious liability it provides another opportunity to look at the relationship between an individual carrying out work and a potential employer. In this case, the Court of Session made it clear that way in which the work was carried out demonstrated that the claimant was an independent contractor with no duty bestowed upon the defendant sub-contractor.
Read the Review in full:
https://www.legal-island.com/articles/uk/case-law/2024/april/miller-v-jw-wheatley--son-ltd-2023/
Patterson v Ashe [2024] NIIT 67591/22
Summary Description: A case in which some training payments could be deducted in line with the contract but others could not due to evidential issues.
Claimant: Anna Leontine Patterson
Respondent: Tracey Ashe
Keywords: Unlawful Deduction from Wages
Practical Guidance for Employers:
When it comes to training employers would rightly want to protect themselves by being able to claw back funds paid on a staff member who leaves shortly after the training. Where that is the case, then the nature of the training, the date of the training and its cost should be noted by the employer. This would provide an evidential basis should there be a deduction from the final pay relating to training as shown in this case.
Read the Review in full:
https://www.legal-island.com/articles/uk/case-law/2024/april/patterson-v-ashe-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
AI - Just how good does it need to get for us to overcome our paralysis?
Catch up on our latest podcast episode:
McCann FitzGerald invests in generative AI partnership
McCann FitzGerald LLP has announced a new partnership with Harvey AI, a global generative artificial intelligence solution designed specifically for the legal profession. Harvey AI was selected by McCann FitzGerald LLP following an extensive review, where a specialist team examined both the opportunities and limitations of generative AI, including risk assessments and potential use cases. You can read more from Irish Legal News here:
https://www.irishlegal.com/articles/mccann-fitzgerald-invests-in-generative-ai-partnership
AI upskilling is key to retaining and advancing women in tech
Skillsoft’s latest Women in Tech Report found a top barrier facing women pursuing careers in tech is a lack of training, particularly surrounding advancing technologies like generative AI (GenAI). When asked which tech-related topic they are most interested in learning about, the greatest portion of respondents said AI (41%). Despite this desire, 60% said they are not yet using AI at work, and of those who are, 63% haven’t received adequate training and resources to integrate the technology into their work. More from HR Director:
https://www.thehrdirector.com/business-news/gender/ai-upskilling-key-retaining-advancing-women-tech/
Information Commissioner’s Office seeks views on accuracy of generative AI models
The ICO is seeking views from a range of stakeholders, including developers and users of generative AI, legal advisors and consultants working in this area, civil society groups and other public bodies with an interest in generative AI. The consultation is open until 5pm on 10 May 2024:
https://ico.org.uk/about-the-ico/media-centre/news-and-blogs/2024/04/information-commissioner-s-office-seeks-views-on-accuracy-of-generative-ai-models/
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3. Supreme Court finds UK Trade Union law incompatible with Convention Rights
In Secretary of State for Business and Trade v Mercer, the Supreme Court has made a declaration of incompatibility in relation to the lack of statutory protection from detriment for taking part in lawful industrial action. The Court said that S146 of the Trade Union Labour Relations (Consolidation) Act 1992 is incompatible with Article 11 of the European Convention on Human Rights (right to freedom of association). It will now be up to Westminster to consider legislative amendments to bring the UK into line in this area.
Read the Supreme Court judgment here:
https://www.supremecourt.uk/cases/docs/uksc-2022-0080-judgment.pdf
And for Lewis Silkin’s commentary……………
Supreme Court rules that UK trade union legislation breaches human rights law
The Supreme Court has ruled that UK trade union legislation breaches workers’ human rights by failing to provide striking workers with protection from sanctions short of dismissal. Following the issue of a declaration of incompatibility by the Supreme Court, Parliament will now need to consider whether to amend trade union law to ensure compliance with Article 11 of the European Convention of Human Rights (ECHR). More:
https://www.lewissilkin.com/en/insights/supreme-court-rules-that-uk-trade-union-legislation-breaches-human-rights-law
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4. Women's Health in the Workplace
The Period Products (Free Provision) (2022 Act) (Commencement No.2) Order (Northern Ireland) 2024
This Order appoints 15 April 2024 as the day for the coming into operation of the following sections of the Period Products (Free Provision) Act (Northern Ireland) 2022 (the Act):
https://www.legislation.gov.uk/nisr/2024/92/contents/made
The true impact of endometriosis in the workplace — a guide for employers
Endometriosis — which affects one in ten women (and those assigned female at birth) — is estimated to cost the UK economy £8.2bn a year in treatment, loss of work and healthcare costs. As with many reproductive health issues, many suffering from the condition continue working, take little time off and hide pain from their managers and colleagues. This can have a significant emotional, mental and physical toll on their health and wellbeing. Lexology has more:
https://www.lexology.com/library/detail.aspx?g=a1d0e7e3-798d-4385-b402-4d661ab9a12e
Admin worker successfully sues male boss for menopause discrimination after he ignored her complaints when she said she was suffering from 'Old Lady Disease'
An admin worker whose male boss ignored her complaints that she was suffering from 'Old Lady Disease' has successfully sued him for menopause discrimination. Marie Johnson asked to work a four day week saying the condition had a 'profound' impact on her 'day to day activities' and likening it to feeling as if she had 'a goldfish bowl on her head'. More:
https://www.dailymail.co.uk/news/article-13319953/Admin-worker-successfully-sues-male-boss-menopause-discrimination.html
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5. Diversity & Inclusion
Court looks back on year of milestones
The UK Supreme Court has published a video showing the highlights of their work over the past year supporting diversity and inclusion in the legal profession. The video features interviews with interns, Lord Leggatt hosting the inauguration of the Sikhs in Law Association, British Sign Language tours, Lady Simler's swearing in, and career discussions with the Law Society and Black Talent Charter:
https://www.supremecourt.uk/news/stories/2024-04-15-diversity-and-inclusion-video-launch.html
Businesses need to do more than simply get neurodivergent people through the door
Despite the large numbers of neurodivergent talent available (around 15-20 per cent of the global population is thought to be neurodivergent; 2 per cent are estimated to be autistic), only 29 per cent of autistic people are in full-time employment. Businesses need neurodivergent talent, neurodivergent workers want to work. So why the disconnect? Often, narratives on the autism employment gap are centred around finding work and getting a job, yet far less attention is given to considering the working environment once neurodivergent employees have joined an organisation. Read more from the Scotsman:
https://www.scotsman.com/business/businesses-need-to-do-more-than-simply-get-neurodivergent-people-through-the-door-emma-walker-4593461
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6. Economy
Labour market statistics
The UK employment rate (for those aged 16 to 64 years) was estimated at 74.5% in December 2023 to February 2024, below estimates of a year ago and decreased in the latest quarter. More here:
https://www.ons.gov.uk/employmentandlabourmarket/peopleinwork/employmentandemployeetypes/bulletins/uklabourmarket/latest
And in NI…
The proportion of people aged 16 to 64 in work (the employment rate) increased by 1.1pps over the quarter to 71.7%
The full statistics from NISRA are here:
https://www.economy-ni.gov.uk/news/labour-market-statistics-65
UK unemployment rate jumps by more than expected in cooling jobs market
Britain’s unemployment rate has risen by more than expected and earnings growth has eased back once again in the latest sign that economic uncertainty is affecting the UK jobs market. The Office for National Statistics (ONS) said the jobless rate jumped to 4.2% in the three months to February – the highest level for nearly six months and up from 3.9% in the three months to January. More from the Belfast Telegraph:
https://www.belfasttelegraph.co.uk/business/uk-world/uk-unemployment-rate-jumps-by-more-than-expected-in-cooling-jobs-market/a516330033.html
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7. Sickness Absence
Universal credit must change to tackle long-term sickness, report says
Universal credit (UC) will need to change to meet the challenges of an older and sicker population, a new report suggests. The number of benefit claimants who are out of work due to ill health has almost doubled since 2013, says the Resolution Foundation:
https://www.bbc.co.uk/news/explainers-68814023
UK businesses record a 55% increase in sick leave
New analysis of over 1,700 businesses has revealed that the average business has seen a sharp rise in sick leave – with 55 percent more days lost in the last four years due to short and long-term illness. HR Director has more here:
https://www.thehrdirector.com/business-news/press-release/uk-businesses-record-55-increase-sick-leave/
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8. Just in Case You Missed It...
There Have Been Several Complaints from Management About an Employee Wearing Headphones in the Workplace: How do I Handle it?
Emma Doherty from Tughans LLP helps us in our latest “How do I handle it?”. We provide practical answers to unusual, sensitive or complex work-related queries. This month’s problem concerns:
“We have had several complaints from management about an employee wearing headphones in the workplace. The employee said he needs his headphones, as they help him to concentrate and perform his role properly. How do I handle it?”
To find out the solution, read more here:
https://www.legal-island.com/articles/uk/features/how-do-i-handle-it/2024/april/there-have-been-several-complaints-from-management-about-an-employee-wearing-headphones-in-the-workplace-how-do-i-handle-it/
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9. HR Developments
Employees admit using sick leave to avoid toxic workplaces, poll reveals, sparking concerns over ‘dysfunctional’ environments
One in three (33 per cent) employees who have experienced a toxic workplace culture said they have used sick leave to avoid it, a survey has found, with experts prompting calls for early intervention to stop toxic workplace cultures forming. More than two in five (44 per cent) respondents said they have also used their holiday or personal leave to avoid a toxic workplace, the study by HR consultancy Intoo has found. You can read more from People Management:
https://www.peoplemanagement.co.uk/article/1868993/employees-admit-using-sick-leave-avoid-toxic-workplaces-poll-reveals-sparking-concerns-dysfunctional-environments
The hero tax: Why 'selfless' workers are professionally exploited
Recent research suggests the hero label is loaded with unhelpful assumptions about these workers' personal needs and ambitions. Matthew Stanley, a post-doctoral research associate at Fuqua School of Business at Duke University, US says the consequences in the workplace can be serious. Stanley's research suggests that "heroisation" may lead to poorer remuneration, and it can lead others to turn a blind eye to policies that result in worse working conditions. "We're less concerned about poor treatment," says Stanley, "if the people who are being exploited are 'heroes'." BBC Worklife has more on this:
https://www.bbc.com/worklife/article/20240409-heroic-jobs-earn-less-money
Do you care if your employees are high at work?
With the rise of remote work, it’s easier than ever for employees to do drugs on the clock. While there are few statistics on recreational drug use at work, a survey by the American addiction site DrugAbuse.com found that 22.5 per cent of people admit to consuming drugs or alcohol at work, with one in five using cannabis while on the job. Read more from Dazed:
https://www.dazeddigital.com/life-culture/article/62353/1/why-are-people-doing-drugs-at-work-getting-high-cocaine-cannabis-ket
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10. Employment News in the Media
A Muslim teaching assistant who claimed that being given the Christmas Grinch prize at a staff award ceremony amounted to religious discrimination has lost his employment tribunal case. More from the Daily Mail:
https://www.dailymail.co.uk/news/article-13319721/Muslim-teaching-assistant-Salah-Toughfar-says-named-Christmas-Grinch-school-awards-racial-discrimination.html
Suggesting someone is 'playing the race card' if they complain about how they have been treated at work is racist, an employment tribunal has ruled. This is because it is 'inconceivable' a white person would face the same accusation, the tribunal said, describing the comment as 'irrefutably connected' with race. You can read more on this story from the Daily Mail:
https://www.dailymail.co.uk/news/article-13310141/Suggesting-playing-race-card-complain-theyre-treated-racist-judge-rules.html
An agreement has been reached to end industrial action by lecturers at further education colleges in Northern Ireland. A new and improved pay offer made earlier this month was accepted by "a large majority" of members of the UCU and the NASUWT unions. The pay offer included the minimum lecturers' pay point being uplifted to £30,000 from £24,496. More from the BBC:
https://www.bbc.co.uk/news/uk-northern-ireland-68833980
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11. 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.
A raft of new guidance has been published in GB
While these apply only to GB, they are useful none-the-less.
- Flexible Working
ACAS Code of Practice to read alongside the Guide previously published. Extended rights to request flexible working came into force on 6th April 2024 in GB only:
https://www.acas.org.uk/acas-publishes-new-code-of-practice-on-flexible-working
- Carer's Leave
New rights in GB only came into force on 6th April 2024:
https://www.acas.org.uk/carers-leave
- Prevention of Pregnancy & Maternity Discrimination at Work
Updated Guidance to reflect changes in GB:
https://www.equalityhumanrights.com/equality-watchdog-advises-employers-updated-pregnancy-and-maternity-protections-workplace
- Disabled People and those with health Conditions in the Workplace
Guide to support those wanting to retain and progress disabled people in the workforce:
https://www.gov.uk/government/publications/disability-confident-and-cipd-guide-for-line-managers-on-employing-people-with-a-disability-or-health-condition
Automated police vetting system being explored
The home secretary has commissioned the development of an automated national police vetting system that will continuously conduct background checks for police officers in England and Wales. James Cleverly wants to replicate a system that has been introduced in airports, which continuously checks the names of all staff with access to restricted areas against criminal and non-criminal databases. Personnel Today has more here:
https://www.personneltoday.com/hr/automated-police-vetting-system-being-explored/
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12. Free Webinars This Month
Employment Law at 11 - With O'Reilly Stewart Solicitors
Friday, 3rd May 2024 (11:00am - 11:45am)
May's topic is "Harassment in the Workplace".
Christine and Seamus will hear from Claire Webb from the Labour Relations Agency in what is sure to be an engaging discussion. Claire drafted the "Eliminating Sexual Harassment from the Modern Workplace" Guidance released last month, a joint venture between the LRA and the Irish Congress of Trade Unions, and approved by Women in Business.
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 weekend.
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