To all the survivors out there on day 400 of January, we salute you! Just think, this time next week you'll be paid, you can start eating meat again and you can enjoy a G&T! But now, the news............

This week's top 5:

1. Former Irwin's bakery worker receives £75k
2. Four key dates as further industrial action by Translink staff set to halt public transport in NI
3. Why UK’s green revolution urgently needs skilled workers
4. How to successfully integrate GenAI with existing organisations
5. One in five employers facing protracted disciplinary processes

And in other news...............have you signed up for our "Legal Answers to HR Dilemmas" event yet? We've teamed up with Ian McFarland, Partner in Eversheds Sutherlands employment team to bring you a comprehensive exploration of the 5 most challenging HR dilemmas from start to finish of the employment relationship - help is at hand! More details HERE.

CONTENTS

1. Case Law Reviews
2. AI and Employment Law
3. Flexible and Remote Working
4. Diversity and Inclusion
5. ‘We’re facing a critical shortage’: why UK’s green revolution urgently needs skilled workers
6. Industrial Action
7. Just in Case You Missed It...
8. HR Developments
9. Employment News in the Media
10. GB Developments
11. Health and Safety Developments
12. Free Webinars This Month

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1. Case Law Reviews

Toure v Ken Wilkins Print Ltd [2023] EAT 163

Summary Description: Unfair dismissal and victimisation claims dismissed where the racial abuse allegation was found to be fictional and used as a method to try and blackmail the employer.

Claimant: Nicolas Toure

Respondent: Ken Wilkins Print Ltd

Keywords:  Victimisation; Dismissal

Practical Guidance for Employers:

A case relating to a false abuse claim being used to ask for a promotion and a salary increase.  This clearly places an employer into a difficult position, but by following the appropriate processes it ensures that there is an evidenced based decision which found that there was no abuse in this situation.  As a result, the employer remaining resolute was vindicated through the Tribunal and EAT decisions.          

Read the Review in full:  
https://www.legal-island.com/articles/uk/case-law/2024/jan/toure-v-ken-wilkins-print-ltd-2023/

Borg-Neal v Lloyds Banking Group [2023] Case No: 2202667/22

Summary Description: Saying the ‘N’ Word during a training session on race would not reasonably amount to gross misconduct when taken in context as part of asking a question on dealing with a situation as a line manager rather than being used as a term of abuse.

Claimant: C Borg-Neal

Respondent: Lloyds Banking Group Plc

Keywords:  Unfair Dismissal; Race

Practical Guidance for Employers:

This case has led to a huge sum of compensation being awarded to the claimant.   It demonstrates how the band of reasonable responses operates and how the context of a particular statement should be taken into account.  It was noted by the Tribunal that it could reasonably be regarded as misconduct in terms of saying the whole word but that in the context it did not reasonably amount to gross misconduct.        

Read the Review in full:
https://www.legal-island.com/articles/uk/case-law/2024/jan/borg-neal-v-lloyds-banking-group-2023/

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 Helps HR Talk to its Multilingual Workforce

In this episode, Barry Phillips discusses how AI helps Human Resources professionals talk to a multilingual workforce. Listen now:
https://www.legal-island.com/articles/uk/resources/ai-for-hr-weekly-podcast/2024/jan/ai-helps-hr-talk-to-its-multilingual-workforce/

ChatGPT-powered GOV.UK chatbot trials show promise but uncover ‘issues of accuracy and reliability’

The Government Digital Service has pledged to take a “measured” approach to its work on a proposed GOV.UK chatbot, after public trials of the tool – powered by the technology behind ChatGPT – showed promise but shed light on “issues of accuracy and reliability”. A survey of their experiences found that about 65% of participants were satisfied overall, while 70% said they received useful answers from the technology – which, using large language model (LLM) tech from ChatGPT creator OpenAI – is designed to scour content on GOV.UK and use it provide “ a human-like response” to users’ questions. However, the public testing process found that, ultimately, “answers did not reach the highest level of accuracy demanded for a site like GOV.UK”, according to the GDS update. Pubic Technology has more on this:
https://www.publictechnology.net/2024/01/23/uncategorized/were-not-moving-fast-and-breaking-things-chatgpt-powered-gov-uk-chatbot-trials-show-promise-but-uncover-issues-of-accuracy-and-reliability/

AI to take leading role in HR function

HR professionals across the UK have signalled that artificial intelligence (AI) will play a key role in talent acquisition, onboarding, training, and retention in 2024 and beyond. However, HR departments must play their role in mitigating the risk of bias from algorithmic design and model training data. This is according to research commissioned by the organisers of HR Technologies UK, the country’s meeting place for HR and recruitment professionals. More:
https://www.thehrdirector.com/business-news/ai/ai-take-leading-role-hr-function/

How to successfully integrate GenAI with existing organisations

Trust in technology is hard won and easily lost. The big story in the UK this month has been the Post Office Scandal, where a known faulty, digitised accounting system was relied upon to wrongly convict hundreds of postmasters. “How do we know we can trust it?” has just become the question for new, load bearing IT systems. Examples of organisations getting this right range from games platform Steam to the US Supreme Court and emphasise the importance of consultation, contextualisation and a steady, considered decision making process. In contrast, organisations who lie about their use of AI and are then caught out should expect to face a stern backlash, even when the AI use was somewhat indirect. More from Paradigm Junction’s James Hutt, who will be speaking at our AI event on 6th of March:
https://paradigmjunction.substack.com/p/ai-digest-jan24?r=2d14fy&utm_campaign=post&utm_medium=web

DWP signs deal for AI tech to analyse citizens’ social posts in anti-fraud drive

In a bid to clamp down on benefit fraud, the Department for Work and Pensions has signed a deal for automated technology that can analyse and flag up millions of social posts made by citizens. On 18 December, the department entered into a one-year deal with Capita for the use of its Cosain software, which is an “AI-driven automated social-media listening and OSINT (open source intelligence) platform”. Newly published commercial documents reveal the tool will be deployed to provide “an open-source search and alert platform to provide the intelligence needed to allow DWP to identify and manage fraud”. Public Technology has more on this:
https://www.publictechnology.net/2024/01/18/society-and-welfare/dwp-signs-deal-for-ai-tech-to-analyse-citizens-social-posts-in-anti-fraud-drive/

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3. Flexible and Remote Working

Four in 10 employers returned fully to the office in 2023

Four in 10 companies returned to a full-time office week in 2023, according to a new annual movers index from Virgin Media O2 Business. Its research revealed that 52% of workers preferred to go to the office, and 39% attended the office more frequently last year than in 2022. Commuters spent up to £7,540 a year on going into the office, including travel and lunch. You can read more from Personnel Today:
https://www.personneltoday.com/hr/virgin-annual-movers-index/

Civil service leaders face new back-to-office performance regime

Departmental leaders are set to be hit with new personal targets for compliance with ministers’ latest back-to-the-office drive for civil servants, Cabinet Office minister John Glen has said. Glen said that success with the 60:40 push will be factored into senior officials’ yearly appraisals, adding an additional incentive for bosses to be seen to lead from the front, according to Civil Service World:
https://www.civilserviceworld.com/professions/article/civil-service-leaders-back-to-office-performance-regime

Judge rules against manager's bid to work from home, citing 'weaknesses in remote working'

A senior manager at the Financial Conduct Authority [FCA] who wanted to work from home full-time has had her case thrown out by a judge who said remote technology cannot replace the “fast interplay” of the office. Elizabeth Wilson, who earns around £140,000 a year, had sought to overturn her bosses’ decision on not being allowed to work exclusively from home. The Telegraph has more on this here:
https://www.telegraph.co.uk/news/2024/01/20/financial-conduct-authority-elizabeth-wilson-work-from-home/

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4. Diversity and Inclusion

Age discrimination case: Former Irwin's bakery worker receives £75k

A County Fermanagh man has received £75,000 after his former employer settled an age discrimination case. Seamus Gillespie, 62, worked for WD Irwin and Sons bakery from 1991 until he was made redundant in August 2022. The case, supported by the Equality Commission, was settled without admission of liability by the company. More here from the BBC:
https://www.bbc.co.uk/news/uk-northern-ireland-68061649

And for the ECNIs take: https://www.equalityni.org/Footer-Links/News/Individuals/Age-discrimination-case-settled-for-%C2%A375,000

How old is too old to join Ireland's police force?

The Irish police force, An Garda Síochána, announced this week it is raising its upper age limit for recruits from 35 to 50. People on the cusp of half a century can now compete for a place at the Garda College, alongside candidates as young as 18. It follows a legal case taken by two men who successfully claimed they were victims of age discrimination as they could not apply to join after the age of 35. The BBC has more here:
https://www.bbc.co.uk/news/articles/c14yk47829qo

Working carers are being excluded from promotion

A new report by www.leadersplus.org released this week suggests that working carers are being excluded from promotion because of their caring responsibilities. Out of the nearly 1,000 parents and carers surveyed, 60% said they felt unable to progress in their careers because of their responsibilities at home.  The figure was significantly higher for mums than dads with 67% of mothers feeling stuck at a certain level vs 43% of men. HR Director has more:
https://www.thehrdirector.com/business-news/employment/working-carers-excluded-promotion/

Proactive steps for employers embracing diversity and inclusion - targets and the risk of unintended discrimination

The concept of setting targets to achieve a change in demographic at the top of an organisation is not new. The regulators’ proposals go further, as they would require firms to set stretching diversity targets to address underrepresentation throughout the firm. As well as having a wider D&I strategy overseen by the board, the expectation is that in-scope firms will have at least one target for:

• the management body (normally the board);
• senior leadership; or
• the entire employee population as a whole (including board and senior leadership).

More from Lexology:
https://www.lexology.com/library/detail.aspx?g=df5116c5-dac9-408d-9031-da34df5a184c

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5. ‘We’re facing a critical shortage’: why UK’s green revolution urgently needs skilled workers

Britain’s greatest industrial transformation since the Industrial Revolution will require a change on a similar scale: hundreds of thousands of jobs are expected to be created by the needs of a low-carbon economy. There are thousands of miles of cables to add to the national grid, electric car battery factories to build, heat pumps to install, and rising demand for wind and solar farms. Experts warn of a “critical shortage” of certified welders and electrical engineers, and fear that the government may have left it too late. The Guardian has more:
https://www.theguardian.com/environment/2024/jan/20/were-facing-a-critical-shortage-why-uks-green-revolution-urgently-needs-skilled-workers

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6. Industrial Action

Four key dates as further industrial action by Translink staff set to halt public transport in NI

Public transport across Northern Ireland is set to be halted over four days next month. Strike action by the GMB, Siptu and Unite unions is due to take place on February 1st, 15th, 27th and 28th, Belfast Live understands:
https://www.belfastlive.co.uk/news/northern-ireland/four-key-dates-further-industrial-28477273

TUC and REC urge government to abandon rehashed plan to allow agency staff to replace strikers

The Trades Union Congress (TUC) and the Recruitment & Employment Confederation (REC) joined forces to urge the government to abandon plans to end a longstanding ban on agency workers filling in for employees who are on strike. The union body and agency sector body call on ministers to reconsider the ”ill-judged proposal”. In June the government was defeated in the High Court after it rushed through new laws that allowed agencies to supply employers with workers to fill in for those on strike but despite this rebuke – and strong opposition from employers and unions – ministers are resurrecting the plans. More from TUC:
https://www.tuc.org.uk/news/tuc-and-rec-urge-government-abandon-rehashed-plan-allow-agency-staff-replace-strikers-0

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7. Just in Case You Missed It...

Unlocking the HR Advantage: 2024 Recruitment Trends and Strategies - with MCS

Julie Holmes from Legal Island and Ryan Calvert, Head of Human Resources, Sales and Marketing Recruitment from MCS, provide an annual recruitment wrap-up, where Ryan delved into the latest recruitment trends in roles, pay and sector differentiators. Essential viewing to stay up-to-date with recruitment insights to gain a competitive edge in the talent market. Catch up here:
https://www.legal-island.com/articles/uk/resources/webinars/2024/january/unlocking-the-hr-advantage-2024-recruitment-trends-and-strategies---with-mcs/

Introduction and Podcast Outline

Welcome to the AI for HR Weekly Podcast, brought to you by Barry Phillips. Barry will deliver a weekly summary of AI developments relevant to HR in no more than 5 minutes. Listen now:
https://www.legal-island.com/articles/uk/resources/ai-for-hr-weekly-podcast/2024/jan/introduction-and-podcast-outline/

Ten Ways to Get Started with AI in HR

Barry Phillips (CEO) BEM, Legal Island and Kieran Gilmurray, Digital Transformation Expert, give you bitesized chunks of how to get started with AI in this webinar, together with slides and a helpful demo:
https://www.legal-island.com/articles/uk/resources/webinars/2024/january/ten-ways-to-get-started-with-ai-in-hr/

What Needs to Change in our Schools in the New Year?

Frank Cassidy, Former Principal & Regional Officer of ASCL, looks to the year ahead and reflects on what needs to change:
https://www.legal-island.com/articles/uk/features/education1/2024/what-needs-to-change-in-our-schools-in-the-new-year/

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8. HR Developments

One in five employers facing protracted disciplinary processes

Nearly one in five (18%) employers see their disciplinary processes dragging on for longer than three months, creating a significant drain on time and resources, a survey has found. Research by employment law, health and safety and HR support service WorkNest revealed that sickness absence caused by stress and anxiety was the most common cause of a protracted disciplinary process, with 23% of employers revealing this as the reason for a long investigation. More:
https://www.personneltoday.com/hr/one-in-five-employers-facing-protracted-disciplinary-processes/

Wellbeing: Staff losing a day of productive time per week

UK employees lose nearly one day per week on average to poor mental and physical wellbeing, with younger workers losing more productive time than their more senior colleagues. Health insurer Vitality found that employees lose an estimated 43.6 days annually to health concerns including musculoskeletal conditions, depression and poor sleep quality. You can read more from Personnel Today:
https://www.personneltoday.com/hr/wellbeing-impact-on-productivity/

Are you a detective or a road runner? Understanding employee personalities and how to manage them

The majority of employees surveyed (21%) were identified as the ‘Negotiator’ personality type. They are typically a “people person”, with a reputation for being reliable, down-to-earth, easy-going and supportive. More from HRD Connect:
https://www.hrdconnect.com/2024/01/19/are-you-a-detective-or-a-road-runner-understanding-employee-personalities-and-how-to-manage-them/

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9. Employment News in the Media

A group of 17 workers, who were dismissed by a Dundee flight school have been awarded the maximum amount possible by employment judge Ian McFatridge. He found Tayside Aviation failed to comply with its obligations to consult with employees prior to them being dismissed. It also failed to make arrangements for appropriate employee representatives to be elected as part of the process. More from the Courier:
https://www.thecourier.co.uk/fp/business-environment/business/4875696/tayside-aviation-didnt-follow-correct-redundancy-process-employment-tribunal-rules/

Amazon has been fined €32m (£27m) in France for "excessive" surveillance of its workers, including measures the data watchdog found to be illegal. The CNIL said Amazon France Logistique, which manages warehouses, recorded data captured by workers' handheld scanners. It found Amazon tracked activity so precisely that it led to workers having to potentially justify each break. The BBC has more on this:
https://www.bbc.co.uk/news/business-68067022

A mother-of-three who was sacked from her £124,000-a-year job after she rejected advances from her boss, which included calling her a 'naughty girl' and praising her 'candy toes', has won a £100,000 sex harassment payout. Marc Bandemer made repeated advances towards Louise Crabtree when he sent her adoring messages, referring to her as his 'second wife', and the 'Belle of the Ball'. In an attempt to woo her, married Mr Bandemer swamped her with adoring messages, complimented her 'fashion model' looks, and even bought her a diamond solitaire 'commitment' ring, an employment tribunal heard. More from the Daily Mail:
https://www.dailymail.co.uk/news/article-12977617/Mother-three-sacked-job-rejected-advances-boss-called-naughty-girl-praised-candy-toes-sex-harassment.html

Removing female staff from work WhatsApp group chats while they are on maternity leave is discrimination, an employment tribunal has ruled. Depriving mothers who have taken time off work to have babies of interaction with their colleagues is 'isolating', the panel concluded. As such, an employer who decides to exclude women from staff chats they were previously part of is in breach of equality laws, it found. You can read more from the Daily Mail:
https://www.dailymail.co.uk/news/article-12983549/Removing-women-Whatsapp-maternity-discrimination-tribunal.html

A Nigerian employee of Johnson & Johnson has won a racial discrimination claim after her manager used a cultural styles report to ‘racially profile’ her. In meetings, Director Alessandra Toro made reference to Tolulope Fayokun’s “negative Nigerian traits”, claiming a ‘Berlitz’ report had helped her understand her “Nigerian workstyle”. The tribunal heard that she was subject to lazy stereotypes and was once told she was working on “African time”. More from Personnel Today:
https://www.personneltoday.com/hr/johnson-johnson-fayokun-tribunal/

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10. 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.

Legal explainer: Sexual misconduct and workplace sexual harassment

There have been a couple of recent changes in law to which colleges will need to adapt. The first change comes as a result of a recent case about sexual misconduct between students. The second relates to a new law covering sexual harassment in the workplace. These two changes are separate (one covers students and the other covers staff), but they do cover similar topics and colleges need to be ready for both. FE Week has more:
https://feweek.co.uk/legal-explainer-sexual-misconduct-and-workplace-sexual-harassment/

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11. Health and Safety Developments

Employer duties in relation to work accidents

A workplace accident that results in serious injury or death is an employer’s worst fear.  Ius Laboris OHS expert group lays out below the basic duties of employers in their countries who are faced with a serious workplace accident, and whether insurance is available to cover all or part of the civil liability arising from the accident:
https://iuslaboris.com/insights/employer-duties-in-relation-to-work-accidents/

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12. Free Webinars This Month

Employment Law at 11 - With O'Reilly Stewart Solicitors

Friday 2nd February 2024 (11:00am - 11:45am)

Register for the next webinar in the series, during which Seamus McGranaghan of O'Reilly Stewart Solicitors and Christine Quinn from Legal Island will discuss:

1.            New Year, New Law - Working Time Regulations

The amended Working Time Regulations came into force on 1st January 2024 – they provide express rights to carry over unused holiday, codify the caselaw in the area and clarify what amounts to normal pay for the 4-weeks ‘EU leave’. Seamus will guide you through the amendments, introduce you to the new guidance just published in both NI and GB and highlight what you need to do going forward.

2.            Social Media Stresses

Another high-profile case in England, Higgs v Farmor’s School, once again shines a light on the issue of social media and clashing beliefs in the workplace. Our own home-grown social media cases – McDade and Shiels -illustrate social media and work is not just a problem in England and Wales, it’s very much a factor in dismissals here in NI. Seamus will talk you through the latest caselaw and steps that you can take now to mitigate risks in your organisation.

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/1955930466134401113?source=WR

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

Enjoy the weekend.

Legal-Island

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