Spotting helicopters in Finaghy and unable to make eye-contact during the school run? Was that you we saw at the Devenish?! Let us peel back the layers of employment law news, so you're not left over-exposed............

This week's top 5:

1. What are the most stressful jobs to work in? (HR?)
2. One in five neurodivergent staff experience discrimination
3. 21st of Feb - Women’s Pay Day
4. DAERA settles Disability Discrimination Case for £50,000
5. What impact is AI having on cybersecurity?

And in other news...............sacked for eating left-overs?!

CONTENTS

1. Case Law Reviews
2. AI and Employment Law
3. Pay
4. Industrial action
5. GB Code of practice to deter fire and rehire ‘lacks bite’
6. Diversity & Inclusion
7. Women's Health
8. What are the most stressful jobs to work in?
9. Northern Ireland Labour Force Survey – Young People Not in Education, Employment or Training (NEET)
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. Case Law Reviews

Z v Commerzbank AG & Ors [2024] EAT 11

Summary Description: A case in which an anonymity order was revoked following hearing as the allegation being made was regarded as being false and untruthful.

Claimant: Z (Anonymised)

Respondent: Commerzbank AG & Others

Keywords:  Anonymity; Costs

Practical Guidance for Employers:

This case demonstrates that in harassment cases especially the alleger cannot hide behind a cloak of anonymity completely when such an order is made.  There is the possibility to have it revoked following the hearing with the Tribunal outlining that there is a public interest in ensuring that those who give dishonest accounts are made known.

Read the Review in full:
https://www.legal-island.com/articles/uk/case-law/2024/feb/z-v-commerzbank-ag--ors-2024/

Kayes v Southern Health & Social Care Trust [2024] NIIT 12604/20

Summary Description: A strike out claim was not set aside where there was repeated failure to provide a witness statement or to locate it from an alleged email.

Claimant: Hugh Bernard Kayes

Respondent: Southern Health and Social Care Trust

Keywords:  Strike Out; Unless Order; Tribunal Procedure

Practical Guidance for Employers:

When cases are issued, the procedure behind them can grow into a saga of their own.  This case relating to sex discrimination primarily but a great deal of time was spent in relation to the procedure and the witness statement for the claimant.  This demonstrates the leniency that is given when it comes to applying a strike out of a claimant’s claim but that there does come a point in which the interests of justice require a strike out and for that strike out to remain.  This had come after repeated attempts to facilitate the claimant in his claim without any avail.

Read the Review in full:
https://www.legal-island.com/articles/uk/case-law/2024/feb/kayes-v-southern-health--social-care-trust-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

The Jagged Edge in AI

In this week's episode, Barry Phillips considers how best to use ChatGPT knowing that it is flawed and likely to hallucinate.

https://www.legal-island.com/articles/uk/resources/ai-for-hr-weekly-podcast/2024/feb/the-jagged-edge-in-ai/

What impact is AI having on cybersecurity?

A new report about the impact of AI on the cybersecurity industry, with 69% of businesses stating that AI in Cybersecurity is needed due to the threat amounts that human analysts are unable to deal with. Breaches that affected organisations with fully integrated security AI solutions cost them $1.8 million less on average than businesses without them, and take 100 days less to identify. This is for three key reasons – enhancing threat and phishing detection, rapidly analysing incidents and finding solutions, and creating threat simulations to predict possible cyber-attacks. HR Director has more on this:
https://www.thehrdirector.com/business-news/ai/impact-ai-cybersecurity/

7 top tech tools for HR leaders

From people insights delivered via data to employee recognition initiatives, here are some useful platforms to know if you work in HR. Read more:
https://www.siliconrepublic.com/advice/tech-tools-for-hr-leaders

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3. Pay

21st of Feb - Women’s Pay Day – the day when the average woman stops working for free compared to the average man

New TUC analysis published reveals the average woman effectively works for free for nearly two months of the year compared to the average man.  This is because the gender pay gap for all employees currently stands at 14.3%. And the analysis also shows that at current rates of progress, it will take 20 years – until 2044 – to close the gender pay gap. More from the TUC:
https://www.tuc.org.uk/news/tuc-gender-pay-gap-means-women-work-first-two-months-year-unpaid

Greggs and Easyjet among more than 500 companies named by the government for not paying minimum wage to staff

Over 500 employers have been named by the government for failing to pay minimum wage to their staff, including high street companies such as Easyjet, Greggs, Currys and River Island. The 524 employers have failed to pay their workers nearly £16 million in a breach of the National Minimum Wage (NMW) law, leaving over 172,000 workers out of pocket, according to the government. The National World has more on this story:
https://www.nationalworld.com/news/greggs-easyjet-more-than-500-companies-named-by-government-not-paying-minimum-wage-to-staff-4526838

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4. Industrial action

£688 million released for long-delayed public sector pay rises

Stormont ministers have agreed to release £688 million to make outstanding pay awards for public sector workers in Northern Ireland. Individual departments have each been given an allocation and will now negotiate with relevant trade unions on the pay rises that will be introduced. You can read more on this from the Belfast Telegraph:
https://www.belfasttelegraph.co.uk/news/northern-ireland/688-million-released-for-long-delayed-public-sector-pay-rises/a1797528144.html

Junior doctors in NI vote for strike action over pay

Junior doctors in Northern Ireland have voted to take strike action for the first time. The result of the six-week ballot will see junior doctors taking part in a 24-hour walkout from 6 to 7 March the BBC reports:
https://www.bbc.co.uk/news/uk-northern-ireland-68336173

Warnings of further strike action from school staff as fears grow over Stormont financial package

Unions have warned that further strike action is a 'certainty' if school support staff who look after children with special educational needs are not offered a pay rise as part of a £688million package from Stormont. The Executive's Finance Minister Caoimhe Archibald announced the package last week following the British government's £3.3billion deal to coax political parties here back to Stormont, however, Unite the Union, who represent education workers such as classroom assistants, bus drivers and school admin staff, says it has written to the Finance Minister amid fears that they may not be included as part of the multi-million payout to public sector workers. More from Belfast Live:
https://www.belfastlive.co.uk/news/northern-ireland/warnings-further-strike-action-school-28663009

From picket lines to front lines: Rebuilding a post-strike workforce

Amid the dust settling from an employee strike, organizations face a critical juncture—rebuilding the team and restoring a harmonious work environment. Strikes, by their very nature, disrupt the status quo, leaving in their wake a need for a comprehensive strategy that addresses the delicate issues of trust, healing, and engagement and this article from HRD Connect outlines how to mend relationships:
https://www.hrdconnect.com/2024/02/19/from-picket-lines-to-front-lines-rebuilding-a-post-strike-workforce/

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5. GB Code of practice to deter fire and rehire ‘lacks bite’

The Westminster government is launching a new statutory code of practice to deter ‘fire and rehire’ practices in GB, but unions have said the code ‘lacks bite’ and will not discourage ‘bad employers’ like P&O Ferries. The Westminster government has said it firmly opposes fire and rehire being used as a negotiating tactic and has published a new draft statutory code of practice making clear how employers must behave in this area. Employment tribunals will have the power to apply an uplift of up to 25% of an employee’s compensation if an employer “unreasonably fails” to comply with the code. More from Personnel Today:
https://www.personneltoday.com/hr/fire-and-rehire-code-of-practice/

And here is the draft Code:
https://assets.publishing.service.gov.uk/media/65d35c10423931826ab7b8a0/draft-statutory-code-of-practice-on-dismissal-and-re-engagement.pdf

 ONLY APPLIES TO GB where it is likely to come into force this Summer (2024). As employment is a devolved matter, the new code does not apply here in NI, but it is useful guidance, nonetheless.

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6. Diversity & Inclusion

DAERA settles Disability Discrimination Case for £50,000

A hearing-impaired man has settled his disability discrimination case against the Department of Agriculture, Environment and Rural Affairs (DAERA) for £50,000, paid without admission of liability. The case was supported by the Equality Commission. Christopher Morrow worked as a park ranger at Crawfordsburn Country Park, through an agency, from approximately May 2018 for three and a half years. More from the Equality Commission:
https://www.equalityni.org/Footer-Links/News/Individuals/DAERA-settles-Disability-Discrimination-Case-for-%C2%A3

And for a different take:
https://www.irishlegal.com/articles/equality-commission-ni-secures-ps50000-settlement-for-hearing-impared-job-candidate

One in five neurodivergent staff experience discrimination

One in five neurodivergent employees have experienced harassment or discrimination at work, while only half feel it is safe to talk about neurodiversity in their organisation. Research from the CIPD and neuroinclusion training provider Uptimize found that 31% of neurodivergent employees have not told their manager or HR about their neurodivergence, with 37% concerned about people making assumptions based on stereotypes. You can read more here from Personnel Today:
https://www.personneltoday.com/hr/neurodiversity-discrimination-cipd-uptimize-report/

Join Seamus and Christine for the next webinar in the series when they will be looking at the best practice for recruiting and retaining neurodivergent staff in your organisation.More details here:
https://attendee.gotowebinar.com/register/1179436662901327190?source=WR

Diversity and Inclusion policy changes are coming in Financial Services

The consultation period for the Financial Conduct Authority (FCA) and Prudential Regulation Authority (PRA) diversity and inclusion (D&I) proposals in financial services has concluded. With these proposed changes, the UK is set to spearhead global adoption of D&I as a regulatory issue. Regulators are striving to promote D&I as a means to enhance psychological safety, understand and address customer needs, expand talent pools, discourage groupthink and drive cultural change. More from the Scotsman:
https://www.scotsman.com/news/opinion/columnists/diversity-and-inclusion-policy-changes-are-coming-sarah-jackman-4520329

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7. Women's Health

UK loses 150 million working days due to lack of workplace support for women’s health

New campaign launched by Benenden Health – in partnership with the Fawcett Society and Cherry Healey – shines a light on the gender health gap in the UK in a bid to break down the barriers that lead to poorer health outcomes for women in the workplace. Read more:
https://www.hrdconnect.com/2024/02/22/uk-loses-150-million-working-days-due-to-lack-of-workplace-support-for-womens-health/

Menopause guidance emphasises need for reasonable adjustments

New menopause guidance for employers from the Equality and Human Rights Commission (EHRC) has emphasised the need for reasonable adjustments where a worker’s symptoms amount to a disability. The equality watchdog’s Menopause in the workplace: guidance for employers states that menopause symptoms – which can range from hot flushes to sleep problems – can be considered a disability if they have a long-term and substantial impact on a woman’s ability to carry out normal daily activities. Read more:
https://www.personneltoday.com/hr/ehrc-menopause-guidance-for-employers/

And find the Guidance here:
https://www.equalityhumanrights.com/guidance/menopause-workplace-guidance-employers

PLEASE NOTE: the Guidance is prepared by the Equality and Human Rights Commission in GB, but is still a useful for NI.

FREE WEBINAR - Employment Law at 11

Join Seamus and Christine for the next webinar in the series when they will be shining a light on the latest menopause guidance and caselaw to help you retain talent in your organisation. More details here:
https://attendee.gotowebinar.com/register/1179436662901327190?source=WR

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8. What are the most stressful jobs to work in? Research shows stress-related sickness across industries

A new study has revealed which sectors are the most stressful to work in, with social work and health care taking the top spots. To find out more, you can read more from The Standard:
https://www.standard.co.uk/news/uk/jobs-most-stressful-industries-work-mental-health-b1139671.html

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9. Northern Ireland Labour Force Survey – Young People Not in Education, Employment or Training (NEET)

Statistics on young people who are not in education, employment or training (NEET) were published yesterday by the Northern Ireland Statistics and Research Agency. Find them here:
https://www.economy-ni.gov.uk/news/northern-ireland-labour-force-survey-young-people-not-education-employment-or-training-neet-18

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10. Just in Case You Missed It...

Extending a Probationary Period: How do I Handle it?

Tughans LLP on employment law and difficult workplace scenarios.

For February 2024, we have asked the employment team at Tughans LLP to provide practical answers to unusual, sensitive or complex work-related queries. We call this feature “How do I handle it?” The articles are aimed at HR professionals and other managers who may need to deal, from time to time, with the less commonplace disputes at work; issues that may, if handled incorrectly, lead to claims of discrimination, constructive dismissal or some other serious difficulty. This month’s problem concerns:

“We have a new hire, who since their start date has had repeated sickness absences, missing almost half of their probationary period. The employee has missed several compulsory training sessions and concerns have been raised about their performance. They are nearing the end of their probationary period and, in the circumstances, we do not feel able to properly assess their suitability for permanent employment. How do we handle this?” 
https://www.legal-island.com/articles/uk/features/how-do-i-handle-it/2024/feb/extending-a-probationary-period--how-do-i-handle-it/

Seamus says.........

1. Social Media Stresses
https://www.legal-island.com/articles/uk/features/discussion/2024/february/social-media-stresses/

2. NEW YEAR, NEW LAW - Working Time Regulations
https://www.legal-island.com/articles/uk/features/discussion/2024/february/new-year-new-law---working-time-regulations/

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11. HR Developments

How can businesses be proactive in their approach to mental health?

With 1.6 million people calling in sick this past Monday, ‘National Sickie Day’, saw a significant portion of the workforce out of action. Taking a sick day can be down to more than just illness – it can also be an indication of burnout. More:
https://www.hrdconnect.com/2024/02/21/how-can-businesses-be-proactive-in-their-approach-to-mental-health/

The crucial lessons for HR to learn from ‘bullying and toxic’ NHS trust and death of doctor

A report reveals a host of continuing concerns about the workplace culture at University Hospitals Birmingham NHS Foundation Trust. The CQC report found “staff did not always feel respected, supported and valued” and “staffing remained a significant concern” at the trust. It was also revealed that not all staff had received mandatory and safeguarding training, including training which was legally required. More from People Management:
https://www.peoplemanagement.co.uk/article/1861777/crucial-lessons-hr-learn-bullying-toxic-nhs-trust-death-doctor

Annual leave: Days taken drops 8%

UK workers are not using their full holiday entitlement according to research which found a 7.7% fall in the annual leave taken between 2022 and 2023. The average employee in the UK took 33.9 days of annual leave including bank holidays last year – down from 36.7 days in 2022, according to research by HR software provider, Access PeopleHR. Personnel Today has more:
https://www.personneltoday.com/hr/annual-leave-days-taken-2024/

CIPD-led over-50s report calls for all job ads to promote flexible working

Business leaders and the government are being urged to prioritise work flexibility in a bid to help over-50s to be more active in the workforce. The 50+ Choices Roundtable has published its Flexible After Fifty report, which suggests measures including all job adverts promoting flexible working and enhanced training for HR to support those wanting the hybrid approach. The report comes as many organisations are facing skills and labour shortages – driven in part by fewer older people being available to work. More from People Management:
https://www.peoplemanagement.co.uk/article/1861758/cipd-led-over-50s-report-calls-job-ads-promote-flexible-working

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12. Employment News in the Media

A cleaner is taking legal action against a top City law firm for indirect race discrimination after being fired for eating a leftover tuna sandwich from a discarded platter. Gabriela Rodriguez from Ecuador cleaned the offices of Devonshires Solicitors for two years. United Voices of the World union (UVW), which supports migrant workers, claims she was sacked just before Christmas 2023 after contractor Total Clean received a complaint from Devonshires Solicitors that leftover sandwiches were not being returned. More from MSN:
https://www.msn.com/en-gb/news/uknews/cleaner-sacked-for-eating-leftover-tuna-sandwich-takes-legal-action-against-city-law-firm/ar-BB1iwTBc?ocid=entnewsntp&pc=U531&cvid=040e3f75b8004b9a81c5d28317f7e7c7&ei=107

A Tokyo-based software company has taken a novel approach to recruitment by involving candidates’ parents in the hiring process. Software firm K.K. Ashisuto held a seminar inviting not only prospective employees but also their parents to get a comprehensive look at the company. This initiative is part of a broader strategy to ensure job offers are accepted and to reduce early turnover among new hires. The Straits Times has more:
https://www.straitstimes.com/asia/east-asia/japanese-firms-try-to-woo-candidates-parents-to-secure-employees-fight-attrition-rate

In a warning to global carriers adopting AI for customer service platforms, Air Canada lost a small claims court case against a grieving passenger when it tried and failed to disavow its AI-powered chatbot. The passenger claimed to have been misled on the airline’s rules for bereavement fares when the chatbot hallucinated an answer inconsistent with airline policy. The Tribunal in Canada’s small claims court found the passenger was right and awarded them $812.02 in damages and court fees. More from Forbes:
https://www.forbes.com/sites/marisagarcia/2024/02/19/what-air-canada-lost-in-remarkable-lying-ai-chatbot-case/

Rail firm Avanti West Coast has come under fire over its decision to give gift bags to menopausal staff containing items like a fan "for hot sweats" and sweets to prevent workers from "biting someone's head off" - with the move being described as an “insulting gimmick” by unions figures. HR Grapevine has more here:
https://www.hrgrapevine.com/content/article/2024-02-19-rail-firm-avanti-under-fire-over-gift-bags-given-to-menopausal-employees

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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.

Whistleblowing charity sees rise in callers to legal advice helpline

More whistleblowers are reaching out for help on how to raise workplace concerns, according to new figures from whistleblowing charity Protect. Calls to Protect's legal advice line rose by 23% in 2023 compared with 2022: the organisation worked on 3,047 cases last year. Two in five callers (41%) to the advice line said their whistleblowing concern had been ignored by their employer while 21% of callers said their concern was under investigation. Of the calls taken in 2023, 15% said their employer had told them their whistleblowing concern was not valid. Read more here from the Law Gazette:
https://www.lawgazette.co.uk/news/whistleblowing-charity-reports-rise-in-callers-to-advice-helpline/5118769.article

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14. Health and Safety Developments

Could mobile minimalism solve digital burnout?

If burnout – characterised by the World Health Organisation as exhaustion, job negativity or cynicism, and reduced professional efficacy – is acknowledged as an occupational phenomenon, a rapidly evolving variant of the condition has got to be digital burnout. Research conducted in 2022 found mobile users in the top mobile-first markets were spending 4.8 hours a day on mobile apps. An even earlier study, in 2020, concluded that on average people open their phones 58 times a day; 30 of those times were during work hours. This suggests that at least some of the apps being used are for work purposes, and here lies the problem. More from HR Magazine:
https://www.hrmagazine.co.uk/content/comment/could-mobile-minimalism-solve-digital-burnout

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15. Free Webinars This Month

Employment Law at 11 - With O'Reilly Stewart Solicitors

Friday 1st March (11:00am - 11:45am)

Equality Matters Special

Register for the next webinar in the series, during which Christine Quinn from Legal Island will discuss:

• Neurodiversity in the workplace

Recent CIPD research shows that 1 in 5 neurodivergent employees have experienced harassment or discrimination at work, and only half say they would feel safe to talk about neurodiversity in their organisation. And case law is stacking up, demonstrating the importance of getting it right with your employees who are not neurotypical. Seamus takes you through best practice, and recent cases that need to be on your radar.

• Menopause and the workplace

8th March is International Women’s Day and we’re talking about something that will happen to all women one day – menopause. Women make up nearly 50% of the working population in Northern Ireland and with the change in pension age, it's likely that more women will be working later into life. So, employers need to consider how they can support women in the workplace, so they can hold on to their experienced staff members. Seamus talks you through the guidance, best practice and caselaw to be aware of.

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/1179436662901327190?source=WR

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

Enjoy the weekend.

Legal-Island

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