"Time goes on.  So whatever you're going to do, do it.  Do it now.  Don't wait." - Robert de Niro

This week's top 5:

1. Race discrimination case settled against the Ryandale Inn, County Tyrone
2. Future of fit notes and workplace health
3. Smaller law firms to prioritise spending on recruitment and AI
4. What does the UK general election mean for employment law?
5. Employers can be found liable for sexual assault outside work

And in other news...............In this week's podcast, Barry Phillips explores the "Dark World of Unregulated Access to Chat GPT at Work"

CONTENTS

1. Case Law Reviews
2. AI and Employment Law
3. Race discrimination case settled against the Ryandale Inn, County Tyrone
4. General Election
5. Strikes & industrial Action
6. The future of fit notes and workplace health 
7. Sexual Harassment
8. Data Protection
9. HSBC and Deloitte latest to pull job offers from UK grads due to new immigration rules
10. Northern Ireland Labour Force Survey – Young People Not in Education, Employment or Training (NEET)
11. Just in Case You Missed It...
12. HR Developments
13. Employment News in the Media
14. GB Developments
15. Free Webinars This Month

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1. Case Law Reviews ⚓︎

Waites v Bilfinger Salamis UK Ltd [2024] EAT 74

Summary Description: Unfair dismissal claim rejected even though the claimant did not have up-to-date policies.  The relevant provisions were the same so the respondent’s failing had no consequences in this respect.

Claimant: Craig Waites

Respondent: Bilfinger Salamis UK Ltd

Keywords:  Unfair Dismissal

Practical Guidance for Employers:

There can be technicalities and processes that must be covered when going through a disciplinary meeting.  In this one of the issues was the availability of the most up-to-date policies which may seem to cause alarm bells for those of us (lawyers and HR professionals alike) reading the case.  However, the Tribunal and EAT came to a sensible conclusion here looking at the substance and whether there had been any change to the relevant provisions and as there had not then the decision could stand.   However, employers should ensure that where there are updated policies that there is due notification given and the mechanisms available to employees to access those policies.

Read the Review in full:
https://www.legal-island.com/articles/uk/case-law/2024/may/waites-v-bilfinger-salamis-uk-ltd-2024/

Lee-Shields v Exquisite Displays Limited [2024] Case No: 2601609/2022

Summary Description: A successful constructive dismissal case when management questioned the caring responsibilities of the claimant and the effect on the workplace.

Claimant: Lee-Shields

Respondent: Exquisite Displays Limited

Keywords: Unfair Dismissal; Caring Responsibilities

Practical Guidance for Employers:

This case demonstrates the importance of that implied term of trust and confidence. The Tribunal makes two very important points when considering these types of case.  The first is that context is everything and the second is that there is no requirement for the conduct to be intentional.  Instead, one must ask whether it was likely to destroy the trust and confidence between the employee and employer.

Read the Review in full:
https://www.legal-island.com/articles/uk/case-law/2024/may/lee-shields-v-exquisite-displays-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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2. AI and Employment Law ⚓︎

The Dark World of Unregulated Access to Chat GPT at Work

Legal Island’s own survey this week of 100 HR personnel suggests there’s  a dark world of unregulated access to AI already going on in the workplace.

The Dark World of Unregulated Access to ChatGPT at Work (legal-island.com)

Employers pay 14% wage premium for AI skills

UK employers are willing to pay a 14% wage premium for workers with AI skills, according to research that finds demand for tech skills and productivity in the most AI-exposed sectors has soared. Growth in job vacancies demanding artificial intelligence-related skills such as machine learning capabilities has outpaced growth seen across all other jobs since 2016, according to PwC’s 2024 Global AI Jobs Barometer. On average, employers expect to pay a 14% wage premium for jobs requiring AI skills, but this increases to 58% for database designers and administrators with AI skills, and 27% for lawyers reports Personnel Today:
https://www.personneltoday.com/hr/wage-premium-for-workers-with-ai-skills-pwc-ai-jobs-barometer/

Smaller law firms to prioritise spending on recruitment and AI

Smaller law firms have recovered their confidence in the future, with hiring more lawyers their joint top spending priority the next 12-18 months, new research has found. Technology is their other spending priority, driven in part by the potential of artificial intelligence. Legal Futures has more on this story:
https://www.legalfutures.co.uk/latest-news/smaller-law-firms-to-prioritise-spending-on-recruitment-and-ai

AI tools helping staff plan in-office time better

It’s starting to look like AI tools may answer some of the thorniest hybrid-working challenges. For all the talk of in-person collaboration being a productivity and culture driver for organizations and their people, half the time employees are left high and dry when they arrive at an office only to find the people they need to see aren’t there. It’s usually only a matter of time before a tech firm swoops in to plug a gap, and Microsoft is among the first out of the gate with an AI tool that’s aimed squarely at making it easier for coworkers to coordinate and synchronize their in-person time. More from Work Life:
https://www.worklife.news/technology/microsoft-places-ai-coordinate-connect-collaborate-hybrid-work/

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3. Race discrimination case settled against the Ryandale Inn, County Tyrone ⚓︎

Six Irish Travellers have settled their race discrimination case against the Ryandale Inn (Moy) Ltd, in County Tyrone for £24,000. The case was supported by the Equality Commission for Northern Ireland. The group of family and friends visited the Ryandale Inn in May 2023 where they planned to have a meal. When they attempted to order drinks at the bar, they were refused service. They were then asked to leave. The incident was recorded on a mobile phone and staff were made aware that they were being filmed. A staff member behind the bar was captured saying, “we can’t serve you,” and when then asked if the reason for this was because they were Travellers, the person behind the bar replied “Yes.” More:
https://www.equalityni.org/Footer-Links/News/Individuals/Race-discrimination-case-settled-against-the-Ryand

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4. General Election ⚓︎

What does the UK general election mean for employment law?

The Labour party has ambitious plans for reforming workers’ rights, so employment law will be a focus of the election campaign. As the manifestos are being finalised, here’s Lewis Silkin’s summary of the key pledges and questions for employers:
https://www.lewissilkin.com/en/insights/what-does-the-uk-general-election-mean-for-employment-law

And here’s Personnel Today’s take…………
https://www.personneltoday.com/hr/general-election-2024-employment-law/

**NB NI employmnet law is a devoilved matter. But it's interesting to get the take of the main GB parties to see the direction of travel.**

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5. Strikes & Industrial Action ⚓︎

Northern Ireland school support workers begin strikes over pay and grading – Xxwatch for updatesXX

Over a thousand Unite the union members employed as school support workers will be taking the first of three days strike action tomorrow (Monday 20 May). Strike action is due to commence from 00.01 (Monday) and continue until 23.59 on Wednesday 22 May. Employers have been notified of two further strike dates in June (3 and 4). The strikes are being coordinated with NIPSA and GMB who will also be striking from tomorrow and Unison who continue to take action short of strike. The strike is likely to result in considerable disruption to schools across Northern Ireland. Unite has the full press release here:
https://www.unitetheunion.org/news-events/news/2024/may/northern-ireland-school-support-workers-begin-strikes-over-pay-and-grading

Special school principal tells parents 'lobby your politicians, don't blame staff' ahead of strike closure

A special school principal forced to close the majority of classes due to strikes has urged parents not to take their frustration out on staff. While mainstream schools will be able to largely remain open, schools in the special education sector - who educate children with disabilities, learning difficulties and complex needs - are set to be hardest hit. You can read more from Belfast Live:
https://www.belfastlive.co.uk/news/special-school-principal-tells-parents-29191339

'It's a crisis' - NI junior doctors go on strike

Significant disruption was expected in Northern Ireland's health services as junior doctors begin a two-day strike over pay. The industrial action started at 07:00 BST on Wednesday and lasted until 07:00 on Friday 24 May. One junior doctor said there was a staffing crisis and that Northern Ireland was "haemorrhaging" doctors. More from the BBC:
https://www.bbc.co.uk/news/articles/cv22l1n4vyqo

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6. The future of fit notes and workplace health  ⚓︎

In a recent address, Prime Minister Rishi Sunak unveiled the government's plans to reform the benefits system, targeting the challenges faced by those unable to work due to illness. He also characterised the UK as having a "sick note culture". Whilst some do not share the Prime Minister's diagnosis of the issue, official statistics show that 11 million "fit notes" were issued in the UK last year, with the vast majority of those signing individuals off as "not fit for work". Such figures present significant challenges for employers and suggest a broader economic impact. More from Dentons:
https://www.dentons.com/en/insights/articles/2024/may/16/the-future-of-fit-notes-and-workplace-health

And to contribute to the call for evidence:
https://www.gov.uk/government/calls-for-evidence/fit-note-reform-call-for-evidence

**NB The call for evidence on fit note reform is seeking responses from stakeholders in Northern Ireland as well as the rest of the UK. While NI has typically followed previous reforms in GB (such as removing the requirement for 'real' signatures on fit notes and expanding who can issue them), health and social services are devolved to the NI Assembly. Therefore, similar to past reforms, local legislation will be necessary to introduce any changes to fit notes in this jurisdiction. There is a process that allows the NI Assembly to agree to apply Westminster legislation in NI, but it is unclear if this will be considered in this case.**

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7. Sexual Harassment ⚓︎

Expert says employers can be found liable for sexual assault outside of work hours as PwC fights case

Employers can be found vicariously liable for alleged sexual assault that occurred between employees outside working hours but only where it was connected with their employment, according to a leading employment law expert. PwC is facing legal action claiming the accountancy firm is liable for the alleged rape of a graduate employee following after-work drinks. The graduate employee is suing PwC for damages over two alleged incidents of sexual assault by a colleague after work hours, court documents show. It includes one claim that the young woman was raped at her home after she went to pubs with colleagues following a meeting held at PwC’s office. More from Yahoo News:
https://uk.finance.yahoo.com/news/expert-says-employers-found-liable-000052027.html

Five action points for HR and senior management to tackle sexual harassment at work

The thorny issue of sexual harassment at work continues to be a focus of media and regulatory attention.  In addition, the Worker Protection (Amendment of Equality Act 2010) Act 2023 will come into effect from October 2024, introducing a new duty on employers to take reasonable steps to prevent sexual harassment at work. Personnel Today highlights five key actions HR and senior management should take to minimise the risks of sexual harassment occurring within the workforce, and ensure that those within their organisation are best placed to manage any issues that do arise:
https://www.personneltoday.com/hr/five-action-points-for-hr-and-senior-management-to-tackle-sexual-harassment-at-work/

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8. Data Protection ⚓︎

PSNI could be fined £750k over data breach

The Police Service of Northern Ireland (PSNI) could be fined £750,000 for a major data breach last year. Following the breach last summer, the PSNI confirmed that the information was in the hands of dissident republicans, among others. The Information Commissioner's Office has announced that the proposed fine could be imposed on the PSNI "for failing to protect the personal information of its entire workforce". More from the BBC:
https://www.bbc.co.uk/news/articles/czqqjglq1lyo

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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9. HSBC and Deloitte latest to pull job offers from UK grads due to new immigration rules ⚓︎

HSBC and Deloitte have reportedly withdrawn job offers to foreign graduates of UK universities, according to reports, as the impact of new visa rules continues to disrupt recruitment across the economy. The retractions have been driven by a significant uptick in the salary that a “skilled worker” needs to be paid – from £26,200 to £38,700 for those under 26 years of age- in order for them to stay in the country. KPMG pulled a similar move last month, reports City A.M.:
https://www.cityam.com/hsbc-and-deloitte-latest-to-pull-job-offers-from-uk-grads-due-to-new-immigration-rules/

And if you're in that position, here's how to do it right................

Withdrawing employment offers: how should it be done?

Whatever the state of the labour market, there may be instances where an employer needs to withdraw a job offer. However, no one likes to be let down, and a prospective employee who has gone through the process of application, interview and assessment is likely to feel aggrieved if they are told they are no longer wanted for a role. More from People Management:
https://www.peoplemanagement.co.uk/article/1873391/withdrawing-employment-offers-done

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10. 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 & Research Agency. Here’s more:
https://www.economy-ni.gov.uk/news/northern-ireland-labour-force-survey-young-people-not-education-employment-or-training-neet-19

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11. Just in Case You Missed It... ⚓︎

An Employee has Submitted a Grievance While Engaged in a Disciplinary Process: How do I Handle it?

This month’s problem is:

“We are currently engaged in a disciplinary process with an employee for gross misconduct. The employee has submitted a grievance, and management do not see the point in dealing with it when they will be dismissed. How do I handle it?”
https://www.legal-island.com/articles/uk/features/how-do-i-handle-it/2024/may/an-employee-has-submitted-a-grievance-while-engaged-in-a-disciplinary-process-how-do-i-handle-it/

Beyond Barriers: Top DEI Challenges in 2024 and How to Solve Them

In this insightful free webinar, delivered by the new CEO of Included, Michelle Sequira, examined the pressing DEI challenges of 2024 and sharing the latest advice and guidance on actionable strategies to overcome them. "Beyond Barriers: Top DEI Challenges in 2024 and How to Solve Them," is designed for business leaders, HR professionals, and DEI advocates who are committed to creating more inclusive environments. Catch up now:
https://www.legal-island.com/articles/uk/resources/webinars/2024/may/new-pagbeyond-barriers-top-dei-challenges-in-2024-and-how-to-solve-them/

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12. HR Developments ⚓︎

Reshaping workplace culture in law firms

The legal industry is at a critical point as concerns about “toxic law firm culture” reach an all-time high. Notorious for its demanding nature, the profession imposes high pressure on lawyers, often prioritising performance at the cost of their wellbeing. More form Legal Futures:
https://www.legalfutures.co.uk/blog/reshaping-workplace-culture-in-law-firms

Concrete products manufacturer fined after placing employees at risk

Following an investigation by the Health and Safety Executive for Northern Ireland (HSENI), a Dunmurry based company, Colinwell Masonry Products Limited has been fined for failing to ensure the safety of its employees. The company was fined £1,000 after pleading guilty to a single health and safety offence. During an HSENI inspection of the premises three separate locations whereby employees were able to access dangerous moving parts of machines and equipment were identified:
https://www.hseni.gov.uk/news/concrete-products-manufacturer-fined-after-placing-employees-risk

Beyond Bogus Self-Employment: the EU platform work directive’s presumption of employment, and its implications for the future of employment rights in the gig economy

On 11 March 2024, the European Union’s employment and social affairs ministers voted to adopt the Platform Work Directive (‘PWD’). First proposed by the Commission in December 2021, the Directive had been the subject of intense negotiations for months, not least given significant opposition from the French government. The instrument’s overarching goal is to ‘improve working conditions in platform work’. To this end, it seeks to combat false self-employment in platform work, but also to create a comprehensive set of rules for algorithmic management applicable to all workers, irrespective of the nature of their employment status. More from Oxford Human Rights hub:
https://ohrh.law.ox.ac.uk/beyond-bogus-self-employment-the-eu-platform-work-directives-presumption-of-employment-and-its-implications-for-the-future-of-employment-rights-in-the-gig-economy/

The difference between a bossed and an unbossed culture

How much do managers help versus get in the way of those they supervise? That’s the question at the crux of “unbossing” – a term for a leadership methodology that’s kicked around for a while but has had renewed attention within companies due to recent layoffs with cuts targeted at eliminating unnecessary management layers that will allow teams to operate in a more self-directed manner, according to workplace experts. But what exactly is the difference between a so-called unbossed and bossed culture with organizations? More from Worklife:
https://www.worklife.news/leadership/wtf-is-unbossing-management-layers-eliminate

Why it’s time to ditch the annual appraisal

There are some issues when it comes to traditional performance review systems but that doesn’t mean we can stop reviewing performance. The Training Zone’s Matt Sommers suggests a more continuous process revolving around five central questions:
https://trainingzone.co.uk/why-its-time-to-ditch-the-annual-appraisal/

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13. Employment News in the Media ⚓︎

Comparing the prejudice faced by black people to being bullied for having ginger hair is not racist, an employment tribunal has ruled. A judge ruled that trying to show understanding by sharing experiences of persecution could actually be a gesture of empathy to a colleague. The ruling came in the case of a black Job Centre worker who lodged a claim for race discrimination and harassment and disability discrimination, after his boss told him that he too had experienced bullying due to his hair colour. More from the Daily Mail:
https://www.dailymail.co.uk/news/article-13439009/Ginger-job-centre-boss-compared-bullying-racism-tribunal.html

A Scottish government employee with disabilities won a direct discrimination case after lacking necessary work equipment. The tribunal found the government failed to provide reasonable adjustments, affecting his performance and leading to his dismissal. The judge ruled in his favour, highlighting the discrimination and the organisation’s failure to accommodate his needs. HR Director has more on this:
https://www.thehrdirector.com/legal-updates/legal-updates-2024/disabled-scottish-government-employee-wins-direct-discrimination-claim-following-lack-adjustments/

Hundreds of long-serving Virgin Atlantic cabin crew are suing the airline for unfair dismissal, claiming that the airline used Covid redundancies to target older staff. An employment tribunal in London will start examining more than 200 cases next month, at which former crew will argue that Sir Richard Branson’s airline unfairly made them redundant while retaining cheaper new hires. According to one claim, disclosure documents show Virgin retained 350 new cabin crew via the pool, some with as little as one week’s training, while onboard managers, who were 45 on average with 20 years’ experience, were made redundant. More from the Guardian:
https://www.theguardian.com/business/article/2024/may/19/hundreds-virgin-atlantic-cabin-crew-sue-unfair-dismissal

Large employers in the Netherlands will be required to report all mileage travelled by their employees from 1 July. The reporting requirement applies to employers with 100 or more employees on 1 January of the relevant reporting year. The new obligation applies if an employer provides financial compensation for commuting or business travel; or provides the opportunity to use a bicycle, moped, motor vehicle or ticket for public transport or other mobility facilities; or both. More from Osborne Clarke:
https://www.osborneclarke.com/insights/dutch-employers-will-need-report-employees-work-related-co2-emissions-july

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14. 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.

Further changes to TUPE regulations proposed in GB

The GB government plans to clarify who TUPE applies to and ensure that employees can only be transferred to one new employer in situations where there are multiple parties involved in an acquisition. The Department for Business and Trade in GB has published a consultation that seeks views on plans to clarify that the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) will only apply to employees, not workers, after a 2019 employment tribunal judgment introduced uncertainty around who it covers. The case, Dewhurst v Revisecatch Ltd t/a Ecourier, concluded that TUPE applies to ‘limb (b) workers’ as well as employees. Although the judgment was not legally binding, the Department for Business and Trade said it had created uncertainty for organisations. More from Personnel Today:
https://www.personneltoday.com/hr/further-changes-to-tupe-regulations-proposed/

Two-fifths preparing for EU pay transparency rules

Two-fifths of companies are preparing for EU pay transparency rules, according to a poll by WTW. The new EU Pay Transparency Directive came into force last year and requires companies to meet a number of reporting requirements by June 2026. The poll of 330 companies across 27 different countries found that 44% had started planning for the new rules, but 21% had not made any preparations. Although the UK is no longer an EU member state, it could impact employers who employ people in the EU. It will also likely raise expectations of pay transparency in the UK, potentially placing pressure on the government to legislate to match EU standards. More from Personnel Today:
https://www.personneltoday.com/hr/eu-pay-transparency-rules-wtw-survey/

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15. Free Webinars This Month ⚓︎

Employment Law at 11 Special – Horizon Scanning with special guest Mark McAllister

21st June 2024 (11:00am - 11:45am)

In a break from tradition, our monthly Employment Law at 11 returns on 21st June 2024.

Join Seamus McGranaghan of O’Reilly Stewart solicitors and Legal Island’s Christine Quinn as they welcome special guest Mark McAllister of the Labour Relations Agency for an Employment Law at 11 special.

The NI Assembly is back, and rumours abound about what’s in store in employment law in the coming 18 months – and forewarned is forearmed!

Mark will be dusting off his crystal ball, normally reserved for Legal Island’s Annual Review of Employment Law in November, to cut through the rumours and give insights on what to expect from Stormont. As always, Seamus will be offering his expert legal opinion on what steps you can take now to make sure your organisation is ready, come what may.

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/7561979620020289629?source=WR

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

Enjoy the LONG weekend!

Legal-Island

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