A number of useful articles and interesting case law reviews were added to the Northern Ireland Employment Law Hub throughout the month of July. Here is a quick recap of some of the recent developments…

Patricia Rooney, Employment Partner at Tughans, considers a complex workplace scenario whereby an employee was unable to work a shift pattern due to a medical condition. Patricia provides comprehensive legal advice and outlines a number of key steps employers should take in order to avoid claims for unfair dismissal, disability discrimination or a failure to make reasonable adjustments.

With the UK’s exit from the European Union slowly but surely approaching, Nathan Campbell, Solicitor in the Employment and Immigration team at Cleaver Fulton Rankin Solicitors, outlines the current rights of EU nationals, what will happen during the ‘implementation period,’ and what the new scheme will mean for EU nationals and their families.

As we all know, calculating holiday pay can be somewhat tricky. As part of our brand new video series in partnership with A&L Goodbody, Andrew Spratt, Associate Solicitor in the Employment & Incentives team, offers a brief summary on the basics, referring to a number of influential cases concerning guaranteed, non-guaranteed and voluntary overtime.

HR expert Olga Pollock provides commentary on the recent heatwave we have been experiencing and how it affects productivity in the workplace.

Chris Fullerton of Arthur Cox answers a number of complex employment law related queries in this month’s First Tuesday feature.

In an article entitled ‘10 Things I Hate about the GDPR,’ Andrew Kirke, Director in the Contracts and Technology Department at Tughans, outlines some of the more painful aspects of the GDPR (or the way it has been interpreted) now that the dust has settled on the mad rush to “GDPR deadline day.”

And we review a number of cases concerning disciplinary dismissal, holiday pay and the scope of vicarious liability in relation to independent contractors.

Unfit Employees and Rotational Shift Patterns: How Do I Handle It?

This month’s ‘How Do I Handle It?’ Unfit Employees and Rotational Shift Patterns article written by Patricia Rooney, Employment Partner at Tughans, concerns:

We have recently introduced rotational shifts into our workplace. We have an employee who says he is unable to work the shift pattern due to a medical condition. We need all the employees to participate in the shift to make it work efficiently.  What should I do about this employee?

Patricia advises employers should ascertain the nature of the medical condition and what job responsibilities the employee is fit to undertake. She highlights the importance of obtaining an OH report to assess whether the employee’s condition meets the requirements of a disability under the DDA and whether the employer’s obligation to consider reasonable adjustments has been triggered.

Patricia warns that only after a number of key steps have been taken can an employer reasonably consider dismissing the employee due to capability concerns, a course of action that is accompanied by the risk of proceedings for unfair dismissal, disability discrimination and failure to make reasonable adjustments.

“Statement of Intent” on Settlement Scheme for EU Workers

With the UK’s exit from the European Union slowly but surely approaching, the UK government has recently published its “Statement of Intent” on the new Settlement Scheme for EU nationals living in UK. This follows on from the agreement reached on the “implementation” period, which is to run between “Brexit Day” on 29 March 2019 until 31 December 2020. Since the result of the referendum in June 2016, UK employers have lost European workers due to the uncertainty that lies ahead. This Statement of Intent gives employers some clarity on the status of EU nationals that arrive in UK by 31 December 2020.

In the latest article from Cleaver Fulton Rankin Solicitors, Nathan Campbell, Solicitor in the Employment and Immigration team, outlines the current rights of EU nationals, what will happen during the ‘implementation period,’ and what the new scheme will mean for EU nationals and their families. Nathan explains the new settled status scheme and provides advice in relation to the application process, listing documents the Home Office will accept as evidence of continuous residence in the UK.

Nathan’s detailed article will certainly be of use to employers who are concerned about Brexit. He helpfully concludes the article by presenting a number of key next steps employers can take in order to assist and retain their EU workforce.

Calculating Holiday Pay: The Basics

As part of our brand new video series in partnership with A&L Goodbody, Andrew Spratt, Associate Solicitor in the Employment & Incentives team, offers a brief summary on the basics of calculating holiday pay.

Andrew refers to the Working Time Regulations 1998. He considers some influential cases including Bear Scotland, British Gas v Lock and the pilots at British Airways, concerning guaranteed, non-guaranteed and voluntary overtime. Andrew advises employers who are still paying only base salary for holidays or have varying rates of pay for various shifts to take legal advice where possible, warning you could be hit with a very big bill as there is an ongoing and accruing liability for companies who continue to act in this way. (4:55)

The Impact of Heatwaves on Productivity

"With temperatures across the UK soaring up to 30 degrees and above of late, I struggle to remember a period of such sustained sunshine that goes beyond rose-tinted childhood memories of long, hot summers. I don't know about you but I always think that the sunshine puts everyone in a good mood but is the impact on workplace productivity quite so positive?"

In this article HR expert Olga Pollock examines the impact rising temperatures have on productivity.

First Tuesday Q&A

In this month’s First Tuesday feature Chris Fullerton of Arthur Cox answers a number of employment law related queries, including:

• Is a female employee entitled to be on statutory maternity leave while her partner is also on shared parental leave?
• Is it unlawful to pay a term-time worker rolled-up holiday pay?
• Does an employer have to allow paid or other leave when an employee suffers a family bereavement?
• What are the consequences for an employer who does not let an employee bring a companion to a disciplinary or grievance hearing?

10 Things I Hate about the GDPR

Implementation of the GDPR was a landmark moment for lawyers working within the data protection sphere. In this article Andrew Kirke, Director in the Contracts and Technology Department at Tughans, outlines some of the more painful aspects of the GDPR (or the way it has been interpreted) now that the dust has settled on the mad rush to “GDPR deadline day”. A very good article.

Case Reviews

In the Ramesh Patel v Folkestone Nursing Home Ltd [2018] EWCA Civ 1689 case, an employee was dismissed for gross misconduct. The Court had to determine whether the employee was in fact dismissed or whether, owing to the success of the internal appeal, he remained in employment and the dismissal had no effect. Learn the outcome on our hub.

The Barclays Bank PLC v Various Claimants [2018] EWCA Civ 1670case concerns the scope vicarious liability and whether it extends to torts committed by independent contractors. Read a summary of the judgment on our hub.

The case of Lancaster & Duke Ltd v Wileman [2018] UKEAT 0256_17_0407 concerns an employee who was dismissed for gross misconduct just short of qualifying for unfair dismissal rights and whether she could add the week's statutory notice period to her length of service in order to meet the threshold.

The Flowers and others v East of England Ambulance Trust [2018] (UKEAT/0235/17/JOJ) case considers the case of Dudley Metropolitan Borough Council v Willetts and whether voluntary overtime should be taken into account when calculating holiday pay.

The Court of Appeal had to decide whether the time carers spent on patients' premises when sleeping must be taken into account when calculating an employer's obligations under the National Minimum Wage Regulations in the Royal Mencap Society v Tomlinson-Blake and Shannon v Rampersad [2018] EWCA Civ 1641 case.

News Story of the Month…

A New Zealand company which trialled a four-day working week for its employees has declared the unique experiment a success. The Trustee Company, Perpetual Guardian, carried out an eight-week experiment earlier this year, with staff receiving their normal five-day salary. The trial examined whether the change in working hours reflected well on the company and its 200+ employees and the impact it had on office productivity. "We've seen a massive increase in engagement and staff satisfaction about the work they do...and no drop in productivity."