Our Annual Review regular, Mark McAllister, Director of Employment Relations Services with the LRA, discusses recent and upcoming developments in employment law.

Topics discussed:

1. Annual rate increases in SMP/SSP/Weekly Rate of Pay, etc.
2. Changes in the National Minimum Wage
3. Gender Pay Gap reporting delay in GB – potential impact.
4. Update on the progress of Early Conciliation.
5. Holiday pay and overtime update.
6. GB/NI Differences:
   • Statements for Workers from 6th April
   • Extension of the holiday pay reference period
   • End of Swedish derogation contracts
   • Agency Workers 'Key facts' page
   • Parental bereavement leave

The Legal Island webinars are sponsored by MCS Group - more information on MCS can be found at www.mcsgroup.com

The Recording

Transcript

Scott: Good afternoon, everybody. This is Scott Alexander. I'm from Legal Island. Thank you very much for joining us today on what hopefully will be a COVID-19 free slot today. We're joined by Mark McAllister from the Labour Relations Agency.

Mark: Hello.

Scott: Hello, Mark. And Rolanda Markey from the L&D team here with me at Legal Island. Rolanda used to work for the LRA, as did I, so it's a bit of a Labour Relations Agency get together. Many of you will know Mark from the annual reviews of employment blog and the keynote speaker. And today what he's going to talk about are the changes that come into legislation, both in Northern Ireland and in GB to look at the comparison situation there between Northern Ireland and GB. And we're going to try to steer clear as much as we can away from coronavirus related questions. But if you really, really have to send some in, please do so.

Now it's being run remotely, so Rolanda is the only one that can see the questions, so we keep them anonymous anyway, but she's the only one who can see them coming in. So, at various stages what I'm going to do is cut back to Rolanda and if they're any questions, she can let us know and we'll ask Mark and we'll take through different sections.

So we're here for 45 minutes. Mark has to disappear for another meeting. Everybody is using Zoom at the minute. So just before we get to the questions, I'd like to remind you that there are an awful lot of eLearning training courses available from Legal Island. We've been doing them for years, but we have a number that would be related to the situation that we're in at the moment, "Protecting Data When Working From Home" is one. You can see it on the right-hand corner of your screen. If subscribers want to go to the website, you'll find that there's a webinar recording of a discussion we had with Gillespie from Pinsent Masons on data protection in the home. It's on the website. So if you missed that last Thursday, it's available to listen to.

So if you want any of these courses or want Debbie from our eLearning team to get in touch, then type "Yes." You'll see a little question box on the right-hand corner of your screen, or the right-hand side of your screen. If you want to, type "Yes," then we'll get Debbie from the eLearning team to tell you all about it. Or you can go to the website and test them out yourself. There's a free course there about "Coronavirus Awareness in the Workplace." But there's also other ones there and there's offers on all of these things there.

So next, to the questions. Rolanda, what's the next slide coming up?

Rolanda: Okay. So we're just going over to Mark now to kick off. Oh, after we have a look at the agenda.

Scott: Yeah, there we go. So here's the agenda. We're looking at the agenda first. So you can see what we're looking to cover there. There's annual rates obviously of the various things that are coming in across the board. The changes to the National Minimum Wage, National Living Wage, gender pay gap reporting delays. An update on progress of early conciliation, which, Northern Ireland thing, albeit across the UK. Holiday pay and overtime updates, GB/NI differences updates. And if there's time, the implications of the recent Morrisons data protection case and vicarious liability.

Next slide please, Rolanda. Okay. We're going to, first of all, look at the NI Reforms. So, Mark, over to you. You've a number of things there on the slide in front of you. Could you maybe talk the audience through those?

PART 1 - NI REFORMS

Mark: Sure. Okay. Hello, everybody, and a great welcome to this non-coronavirus webinar. The reforms that have come into Northern Ireland in the first week of April are there. I'll just walk you through. Some of them are what we call the old perennials where we know exactly what to expect.

National Minimum Wage Increases

National Minimum Wage amendment regulations increase the rates we're all very familiar with on 1st of April.

So now we have the over 25-year-old rate, which is also somewhat confusingly referred to as the National Living Wage, the statute rate is now £8.72 per hour. The 21 to 24-year-old rate is now £8.20 an hour.

The 18 to 20-year-old rate is now £6.45 an hour. The under 18-year-old rate is £4.55 per hour.

And the apprentice rate is £4.15 per hour.

And those increases range from about a 4.9% to a 6.5% increase in the National Minimum Wage.

And most people who regular listeners to Legal Island will know certainly that the National Minimum Wage has become a bit more politicised in recent years, especially with regard to things such as the so-called inexorable move towards the £10 an hour threshold which seems to have been a focus for a long time.

On line 2, these changes, there has been a number two set of regulations which have probably gone, flown beneath most people's radars. These are technical reforms and largely to do with people who are on salaried hours, workers who are on salaried hours. And the technical definitions in there where a worker is classed as a salaried worker and an employer is committed to pay a set amount each pay period even if the hours fluctuate. And the key issue with these reforms is where there has been things like the London weighting or were there has been a reduction or an uplift because of a premium rate attached to it. Medium rate, that comes to, this next provisions for it, where workers will no longer be disqualified if they receive occasional premiums. For example, for working on bank holidays, the premiums will not count towards National Minimum Wage calculation. Employees will also be permitted to set their own calculation year for the purposes of the National Minimum Wage.

A lot of the technicalities are to do with technical breaches and there have been complaints for a long time on the National Minimum Wage for things like Christmas clubs and salary sacrifice games. Whilst they are well-intentioned, often create a technical flout or a technical breach of the National Minimum Wage Regulation. So these number two regulations make provisions to cover those sorts of technicalities. HMRC will still enforce, they will still go through the process of naming and shaming. But many of the amendments are technical in nature and employers will not face major, major fines for being in breach of these technicalities under National Minimum Wage provisions.

Scott: Okay. Mark, can I just come in there, please, Mark?

Mark: Sure.

Scott: Sorry, folks, it's not quite as slick as we normally do it. Ordinarily, Mark and Rolanda and I would be sitting next to each other in a room, so we know when we're going to interrupt. But we're all in different locations with different levels of Wi-Fi and such like. It's a bit more staccato at times.

But just on that, so there's been cases recently of football teams who were found to be in breach of National Minimum Wage legislation because some of their workers wanted money taken off to go towards a season-ticket. And it was Middlesbrough I recall on that one. And the ones you were chatting about, Christmas club, I think that was Iceland and others whose staffers, "I want you to put some money aside for me so that I've got money for Christmas so that we can buy the Christmas dinner," and such like. Those are the kinds of things that employers were getting caught on. And they shouldn't get caught on those going forward, is that right?

Mark: They shouldn't. They're still technical infringements under the legislation. But the HMRC won't be as, let's say passionate about and bring the enforcement on them because they are seen as well-intentioned technical infringements of the legislation.

Scott: Yeah. And notwithstanding that we're not going to talk about coronavirus very much, the National Minimum Wage increases are coming in a time when a lot of businesses are struggling. But those National Minimum Wage increases must be incorporated, I presume, into anybody who is furloughed and happens to be on the National Minimum Wage. So there won't be an increase obviously there for the government who's going to pay 80% of the wage, but also for the employers if they haven't furloughed people. So all these come in as of the 1st of April.

Mark: 1st of April. Yeah, that's correct. I think the important thing to remember in all of this, and I know we're trying to keep away from coronavirus and furlough, I think the thing to remember in all of this is that the furlough scheme or the Coronavirus Job Retention Scheme is effectively an HMRC administered system that is overlaid onto an existing employment law framework and they are not naturally a good fit. So I'm not sure how many iterations of the scheme there'll be before it's actually up and running and money's paid towards the 30th of this month. But we saw as recently as Saturday of last week the refinement of the advisory gave from the government on aspects of the furlough on the retention scheme. Especially around things like the ability to take on another job with a different employer, issues with regard to parental bereavement, maternity, and obviously, National Minimum Wage. So because it's an HMRC administered scheme, the National Minimum Wage and compliance, etc. with that and the rates are a natural fit there. So that should be a no-brainer.

Scott: Okay, thank you very much. And remember anyone, if you have any questions, you can send them in via the little question box that you'll see on your right-hand side of the screen, and those will go to Rolanda. And Mark's finished these next two points, we'll see if there's any questions have come in through the listeners. Mark, onto employment rate increases, etc.

Employment Rates – Increase of Limits

Mark: Yeah. The Employment Rates Increase of Limits Order in Northern Ireland 2020 came into effect this week 6th April.
So we have now got a cap on a week's pay which now stands at £560 per week. We have guaranteed pay, which is £30.
And we also have changes with regard to the statutory maternity leave rates, which I'll give you now. So statutory sick pay will, as of today, increase to £95.85.
Statutory maternity pay / maternity pay, adoption pay and shared parental pay increases to £151.20. Now most of those, the SSP increases today, that's the 6th of April. The increasing with regard to maternity pay and the parental actually increased yesterday, which was the 5th. It always happens on a Sunday. So just be aware of those.
And there are a few other changes within the Social Security Benefits Up-rating Order of Northern Ireland 2020 that take place here this week. But they're not related to employment.

But effectively, every year, as we know, from the 6th of April, for that week, we get the increases in unemployment rates, which are important. Obviously, the cap on a week's pay is important for the purposes of statutory redundancy calculation. Unfortunately, we are seeing more of that in the context of the current coronavirus crisis. Because remember, an employer still can make people redundant, and that does happen if the furlough system doesn't work, isn't applicable for them because they have effectively gone out of business and they cannot actually operate. So those are the key rates that were implemented this week.

Early Conciliation

In terms of taking stock, I'm not really sure what I can say about early conciliation because given that we are so early into the system, it's very difficult to make any sort of appreciable sort of synopsis of how early conciliation is working. Certainly, we have the systems in place. We've had a few issues with regard to our IT system, but they're up and running. Early conciliation is functioning. But given that the tribunals have now effectively stopped hearing cases, that will obviously be put into abeyance and they'll the aspects of that, the focus will probably become more on the furloughing scheme and issues associated with that.

Parental Bereavement Leave

And with regard to parental bereavement leave, we know it's up and running in GB. The minister, Minister Dodds, here in Northern Ireland has made a commitment to implement parental bereavement leave in Northern Ireland. We're not sure whether or not that looks as if it's going to be a direct lift of the GB scheme or whether or not there are going to be amendments to it. Certainly a lot of commentary on the parental bereavement leave provision in GB when they came into effect revolved around things like the notification provisions and the fact that there are both substantive and procedural requirements to the legislation for employees to comply with in terms of notification. The fact that it only applies to employees as opposed to, for example, agency workers. There are lots of question marks hanging over that in terms of whether or not it will be a direct lift from the GB legislation or whether it will be amended to suit the Northern Ireland jurisdiction.

Working Time Regulations Amendments

And similarly, we will see amendments to the Working Time Regulations of Northern Ireland 2016 and these look to be going to be largely in line with provisions in GB. There was a ministerial announcement about it last week in the sense that the plan for the Department for the Economy is to effectively replicate provisions in GB so that people will be able to carry over for two years up to their four weeks of their leave if they have been unable to take their annual leave on the basis of connected with coronavirus. Because as we know, the working time regulations as they are currently drafted effectively say use it or lose it during the holiday period.

So this will be an amendment to the 2016 legislation that effectively allows that exception. In GB, it's referred to as the Working Time Coronavirus Amendment Regulations 2020. They came into effect on the 28th of March of 2020 and they effectively put that provision in the legislation. We're aware that the department has plans underway to replicate that in Northern Ireland. We haven't got a timeframe for it, but I think it'll be sooner rather than later.

Scott: Okay, thank you very much, Mark. Rolanda, do we have any questions in on that first section, the NI reforms?

Note: The Working Time (Coronavirus) (Amendement) Regulations (Northern Ireland) 2020 came into effect on the 28th April, allowing workers in Northern Ireland to carry over their annual leave to the next two leave years. View the legislation here.

Question: Impact of NMW Increase On Furlough Pay

Rolanda: Just a couple of questions really. And I think it's probably just worth clarifying with respect to the National Minimum Wage increase.

So a couple of people have just asked that because that comes in the first week of April, that needs to be applied now. And if is being applied now, then that will obviously then affect the amount of pay that an employer is collecting from HMRC by way of the 80% furlough. Isn't that correct, that it must apply?

Mark: That's correct.

Rolanda: Okay. Okay, just moving onto the next slide.

Mark: Go to the next slide.

Rolanda: It's coming. There we go.

Mark: There we go.

PART 2 - GB REFORMS

Scott: Everything's slower today, Mark. It's just the way it works. It was fine last week. Yeah, move on to the GB reforms and the particulars, which are a very interesting development.

Written Particulars For All Employees and Workers

Mark: Yes, indeed. In GB, the relevant piece of legislation is the Employment Rights (Employment Particulars and Paid Annual Leave) (Amendment) Regulations of 2018. They don't come into effect until today, the 6th of April 2020. And these were a significant development because effectively it says for all employees and workers after this date must be supplied by this statement of Written Particulars. Now practitioners in Northern Ireland will know that in the Employment Rights Order of 1996, and that's a Northern Ireland order, there are around 17 clauses under Article 33 of the '96 order that says here effectively is the Statement of Written Particulars for an employee. And that's the usual, name of the employer, name of the employee, date that the work commenced, and all of the sort of key dates of that.

So the first issue of significance is that it's applicable to all workers, and not just employees. So that's significant. Instead of it being eight weeks wait, it's from day one. But the other interesting component part of this is that the Statement of Written Particulars also must include how long the job is expected to last with the end date if it's a fixed-term contract, how much notice an employer and worker are required to give to terminate the agreement, details of eligibility for sick leave and sick pay, details of other paid leave, for example, maternity leave and paternity leave, the duration and conditions of any probationary paid, and all the renumeration, not just pay. That covers contributions in cash or in-kind, wagers and months for example. And very, very significantly at the bottom, which specific days and times a worker is required to work.

Now at the time this legislation came out, a lot of commentators said, hmm, that will drive a coach and horses through zero-hours contracts because they do not stipulate in the contract or the Statement of Written Particulars which specific days and times they're required to work because that's the nature of the flexibility of zero-hours contracts. It's literally left to form as and when you're required without worrying about mutuality of obligation and all of the things that effectively point towards employee status. However, when you look at the detail of the legislation, it is still coached in terms of the 1996 order. So therefore, it talks about if there are any terms and conditions relating to hours and pay.

So effectively that does away with the notion that you can't have zero-hours contractors, zero-hours workers under the new provisions because there may or may not be a clause relating to the hours of employment. Or it may be a situation where there is guaranteed one hour. Or there are a variety of ways of couching the terminology about the hours and times that a worker is deemed to be working. So I think that allayed a lot of fear for a lot of employers about whether or not this amendment for the day one rate effectively put an end to the construct of zero-hours workers. It did not. And it's certainly a nod to the Matthew Taylor reforms. But those provisions are based as of a Statement of Particulars for all work employees of course in GB. And secondly, probably . . .

Scott: Okay, Mark? Mark, can I interrupt just to clarify?

Mark: Sure.

Scott. It that new workers and new employees? Or do existing ones have to get an update?

Mark: No, it's new. So if you're an employee on today, on or after. It's not retrospective in nature.

Scott: Okay.

Revoking of Swedish Derogation Contracts

Mark: Okay. Probably very significantly under the Agency Worker Regulations of 2010 in GB, the controversy when this legislation came into effect 10 years ago was that a component part of the regulations was what was known as the Swedish Derogation. And the Swedish Derogation effectively meant that if the worker was employed by the employment business and had pay in between assignments, then there was no need to pay that agency worker equal pay with their full-time comparator in the main user organisation and they wouldn't have the same working time related rights under the derogation. This was seen as massively controversial and under the Matthew Taylor Reforms, it was a great deal of consternation that this Swedish Derogation effectively drove a coach and horses through the ethos of the spirit of what the agency regulations were meant to do, i.e. to provide a degree of equality for agency workers and staff in their end-user organisations.

And so one of the central planks of the Matthew Taylor Report was to do away with the Swedish Derogation, the abolition of the Swedish Derogation because it was seen as not being in the spirit of this notion of equality for agency worker staff. So from today, Swedish Derogation contracts will no longer be lawful. An employer has in GB until the 30th of April to write to the agency staff to let them know that they are no longer operating Swedish Derogation contracts. So theoretically, the 12-week rule will apply so that after 12 weeks of employment the individual will be able to make an equal pay comparison with a full-time comparator in the organisation and will have the same working time related rights associated with their place of employment.

Scott: Okay, Mark, and if I come in there just to clarify. That's a GB only change. So in other jurisdictions in the EU, they'll still be able to use the Swedish Derogation if they so wish.

Mark: That's correct. And there was a big controversy at the time 10 years ago when the agency worker regulations came into effect because employment laws are devolved matter in Northern Ireland. But because of this came from agency workers, it was a temporary workers directive, it had UK wide transposition into Northern Ireland. So therefore, there wasn't any devolved aspects to the agency worker regulations. So the regulations that we brought into effect in Northern Ireland in 2011, just about a year after those in GB, they were exactly the same. But the provisions, it has now been recognised as a devolved matter and the Swedish Derogation still, it still operates in Northern Ireland as we speak because there hasn't been any provision made for it in Northern Ireland.

Scott: Okay, thank you very much. Continue.

Mark: Okay. So the agency workers key facts page. Again, this time a lot of this was to do with the Taylor Reforms that came into effect in various guises over the last sort of 12 months in GB. So this effectively makes an amendment to the regulations in GB which are known as the Conduct of Employment Agencies and Employment Business Amendment Regulations of 2019. So from the 7th of April, the key information document that must be handed to an agency worker, it must be a maximum of two A4 size pages and include details such as the minimum rate of renumeration payable to work, deductions to be made to the work seeker's renumeration. If the worker is paid through an alternative mechanism, i.e. through an umbrella or some other intermediary, information about that company or intermediary and deductions must be included too. The document must include an illustrative example of deductions made and the resultant take-home pay or an example with gross pay.

So effectively, those regulations come into effect today in GB, and most of the information will detail around renumeration. So the rate of renumeration, payable intervals, nature and cost of deductions, and so on and so forth. Which are different from what the actual agency worker agreement will be. There will be a separate document whereupon the agency worker will have the sort of, that three-part tight arrangement between them, the end-user, and the agency that they work with. This is just a summary facts page. And most of those will focus on things such as renumeration, costs, and deductions.

Scott: Okay. Go on.

Calculation of Holiday Pay – Reference Period

Mark: Okay. Thank you. Moving on. One of the big controversies, and certainly that's been part and parcel of annual reviews with Legal Island over the last, oh who knows how many years, is the whole notion of holiday pay calculation. And whilst we have the Agnew PSNI case floating about in the background. There are amendments afoot in GB to amend holiday pay calculation reference pay. As we know, the domestic legislation in GB, which is replicated in Northern Ireland under the Employment Rights Order, effectively talks about a 12-week calculation reference period for holiday pay calculation. In GB, as of today, that holiday pay calculation reference period will be extended from 12 weeks to 52 weeks in order to smooth out the bump that occurred in paying renumeration over this period of a year for things like bonuses and commission rates and fluctuations where there is lots of overtime that has been conducted over the 52 week period.

So that legislation, and just let me reach to my endless ream of paper here, the Employment Rights, Employment Particulars and Paid Annual Leave Amendment Regulations 2018, this is GB, comes into effect today on the 6th of April. It simply states in the quality notes, "Where a worker has been employed by their employer for at least 52 weeks, the reference period is increased from 12 weeks to 52 weeks." And that as I said, amends the holiday pay reference calculation period and should make it easier for employers in GB to smooth out those bumps and dips and troughs, peaks and troughs in payment period during the year.

Scott: Okay.

Parental Bereavement Leave – GB

Mark: Okay. Moving on, parental bereavement leave. Parental bereavement leave came into effect in a bit of a rush in GB. Primarily because the full details of it weren't fully thrashed out. And as I'd said earlier on, one of the key provisions in GB is the notion that you have to have employee status. One of the controversies about the parental bereavement leave is that it is quite a familiar statutory framework in terms of taking up to two weeks, 52 weeks after the death of a child. There is a legal definition of what a child is. There's the definition, obviously the definition of employees. There are procedural and substantive aspects to the legislation in regard to the application for parental bereavement leave.

So part two, and I'll read from one provision, "These include the fact of requirements, such as the employee falling with definition of a bereaved parent, as well as a procedural requirements such as employee giving appropriate notice to their employer where an employee has entitled parental bereavement leave under the regulation as a result of the death of one or more child, the employee is entitled to bereavement leave in respect of each child."

A very sombre subject matter. Their legislation is less than compassionate, in my personal view, because it's quite clunky and quite notice based, etc. And as I said, there's a question mark over whether or not Northern Ireland will implement the Parental Bereavement Leave Regulations 2020 in exactly the same way as their counterparts have done in GB. Okay?

Scott: Yeah.

Other ‘Taylor Plan’ Reforms

Mark: Other "Taylor Plan" related reform. We, prior to the outbreak of coronavirus, there were many consultation documents during last summer and some of them have come to fruition in terms of legislation and others haven't. New aspects of Taylor reform plans that have come into effect are the ICE threshold, which is the Information Consultation of Employee Regulations. They came into effect in Northern Ireland in 2005 and they are effectively an exercisable right for 10% of the workforce to make an application for an employer to set up an information consultation forum. And those forums can be the standard default legislative format. They can be a negotiated format. Or they can be what's referred to as a PEA, or pre-existing agreement. But this other format was predicated on the notion that 10% of the workforce would make the application for the employer to set up these provisions.

The law in this area has now changed in GB because the threshold is lowered from 10% to 3% of the total number of employees employed by the employer. And therefore, in theory, making it easier for employers to get these provisions set up. One of the difficulties is it's not an automatic entitlement. It's an exercisable right. So therefore there's always been a question mark about if employees are aware of the fact that they could set up these information consultation forums, and they don't know what the thresholds are and they don't know what the process are, and it's a bit of a damp squid.

Other changes with regard to termination payments, we taught in the last couple of years were termination payments over and above £30,000 would be liable for tax and there was a delay with regard to National Insurance contributions to begin at about £30,000 until the 2nd of April 2020. On the 2nd of April 2019, termination payments were subject to the taxation. Now from 2nd of April 2020, they're subject in addition to National Insurance contribution deductions as well. Okay.

Termination Payments – National Insurance

Scott: So moving on to the next slide in a second. But on those termination payments, is there a reason given that, it's to do with the tax of National Insurance, that doesn't apply in Northern Ireland? Or is it on the wrong slide?

Mark: It's technically not employment law. It sits within the Finance Act Number two of 2017 and so the underpinning logic to it is an HMRC approach. It is not setting within the realms of employment law.

Scott: Yeah. But I'm trying to figure out, I thought it was a Northern Ireland reform, that particular one on the termination payments. But it's on your GB slide.

Mark: Oh, sorry. Yes, apologies. It's across the piece on that.

Scott: Whoa, good. Well, I'm glad I got something right there. I would've made it a complete fool of myself once again.

Mark: That was an oversight on my part.

Scott: That's good. Okay. That's okay, Mark. No problem. The next slide, we'll take questions if there are any, but I know time's tight and you've got to go as well, Mark, so if we can move through these things there, and if there's time at the end, maybe just discuss what the Morrison case means and what it doesn't mean.

Mark: Sure.

Scott: So just run through all four of the points, Mark.

Coronavirus Job Retention Scheme Guidance

Mark: Okay. I think probably the biggest issue that has been gripping all our lives has been not simply coronavirus, but also with regard to the impacts of losing employment, I think my wife had told me that I called out the word furlough in my sleep a few nights ago. Such is the obsession with regard to the Coronavirus Job Retention Scheme. And all the practitioners out there, employment lawyers and the HR practitioners have my sympathy because the data and the information and the advice is being changed on a rapid basis. The new refined information coming from gov.uk changed on Saturday and certainly clarified a few things with regard to the ability to work for another employer when furloughed. The relationship between furlough and things such as maternity, paternity, student provisions as well. More detailed nuanced provision with regard to furlough and parental bereavement leave. The information is starting to come out.

As I said earlier on, we'll probably be on iteration 20 by the time the 30th of April rolls around and the scheme is fully up and running. But in the intervening time, because, as I said, this is an HMRC administered scheme predicated on some very straightforward principles with regard to PAYE and thresholds and percentages and stuff like that. But they do not sit comfortably with the existing framework of employment law that exists in Northern Ireland and obviously in the rest of the UK. So there are many more questions asked and I would certainly be reluctant to be very definitive on subject areas when there is absolutely no guidance because it is guesswork and we're just waiting for new, more nuanced, and refined guidance to come in almost on a weekly basis.

IR35 Update

And there was a collective sigh of relief when the announcement of the delay for IR35, which was due to come into effect this week, had been pushed back by a year. Primarily because there were so many issues associated with this Designation of Contractors provision and the blanket approach that was being taken in regard to contractors in terms of things such as their status as being an employee for tax purposes. Very, very controversial. Especially given the controversies associated with the HMRC's assess test, which was effectively the checking the employment status test, which has been constantly refined and changed, etc., etc. But when to show that employment status doesn't lend itself well to algorithms, so there's been a bit of breathing space with regard to this. So when we come onto the backend of this, the current coronavirus pandemic, we'll probably see a lot more thought go into the IR35 provisions because of the issues we're going to have with what was sort of sort of being collectively referred to as the potential flight of the contractors.

GB Employment Bill

In addition to some of the other things that we've talked about on the Taylor Reform, there were lots of commitments in the various consultation documents that were in last summer which haven't made it to the legislative place yet, but may be seen in the pending employment bill. Now the employment bill in GB was pending just before the outbreak of the coronavirus and this was going to contain things like for example, for zero-hours worker, the right to request a more predictable contract, changes with regard to employees getting the access, employers getting access to all of the tips. Changes with regard to the new single enforcement agency for unfair labour market enforcement and other family-friendly reforms, especially in the areas of neonatal parental leave. We haven't seen anything in the form of a bill yet. It didn't make it into the draft statutory instruments before the coronavirus outbreak. So we're still waiting to see what happens in that regard.

Brexit and Coronavirus

In terms of the intersection between the "B" word and the "C" word, in case anybody thinks I'm going to use any bad language, that's the intersection between Brexit and the coronavirus. There has been little thought applied to this in the context of if we leave without a Brexit deal and the ramifications of coronavirus. What's very, very clear in an employment law arena, nothing will remain the same after this because there will have to be provisions put in place should something like this ever happen before. Because we are in the process of making policy on the hoof. Making up certainly rules and regulations and a scheme where there is no statutory framework underlying it. So this is completely, I hate to use the word, unprecedented, but it is unprecedented.

Scott: Okay. Thank you very much to Mark. Rolanda, do we have any questions in from listeners?

Question: Holiday Pay Reference Period

Rolanda: Yes. I think it would be worth just clarifying the situation with regard to the holiday pay reference period.

I think a few people are panicking here thinking it applies in Northern Ireland at this point in time. And, if you could just maybe go back over that, Mark? I'll go back to the slide where you talked about the amendment to the holiday pay calculation reference period in GB.

Mark: Sure. Let me just get my relevant piece of paper.

Rolanda: Well, I suppose, is there any plans to do something similar in Northern Ireland?

Mark: There hasn't been anything in particular with Northern Ireland because again, it is a devolve matter. And I think what most practitioners were doing was keeping their eye on the case law in this area. So many practitioners in Northern Ireland had one eye on for example, the PSNI and the Agnew case obviously, which is the one that we all watch closely. But also, a case that we talked about in the context of zero-hours workers, which was Brazel and the Harpur Trust case, which effectively talked about using the 12-week period as being the correct mechanism for the holiday pay calculation reference period. But the 52-week provision for it is GB only. It doesn't apply to Northern Ireland. So in Northern Ireland, we continue using the sort of 12-week averaging system under the legislation that we have used up until this point. So sorry for any confusion that that may have covered. But that's GB only.

Question: Clarification of Holiday Pay Reference Period

Rolanda: Okay. And just another wee point on that.

So if somebody, I take it this, does it apply retrospectively? So if you have employees in GB who've only got 20 week service, do you just go back over the 20 weeks or until they reach 52?

Mark: Yeah, that's right. You just go back the many weeks they have, the service that they have. I'm nearly sure, I'm guessing here, Rolanda, I'm nearly sure it's a mixed laundry memorandum to, it's either the Employment Rights Miscellaneous Amendment Regulations, the 2019 regulations. I think it's in there, but I don't have it in front of me just at the moment.

Question: Clarification Of A Week’s Pay

Rolanda: Okay. And could you just clarify as well, the value of a week's pay for redundancy and other reasons in Northern Ireland, did you say £560 for that?

Mark: Yes. The rate increased to £560.

Question – Holiday Pay Calculations for Zero Hour’s Workers

Rolanda: 560, okay. Okay, that's pretty much it.

The final question just on holiday, sorry, just somebody wanted to ask about holiday pay calculation for zero-hour contracts generally and will that in GB be affected by this reference period change and remain the same in Northern Ireland as it is at the minute?

Mark: Yeah. I mean the zero-hours workers in England, they are workers. And they have to remember, the legislation talks about the workers. What happens in regard to zero-hours is the issue doesn't become primarily one about holiday. It then becomes an issue of establishing their status to see whether or not they have worker status as opposed to independent contractor status. Because if they have independent contractor status and they're not a worker, they're not entitled to it. Very often what happens is the debate with regard to holidays and zero-hours workers is not about whether or not, you know, what the calculation mechanism is. Because the calculation mechanism is the same. It will be the 52-week period in GB so long as they are clearly classified as being what's referred to as a limb (b) worker as opposed to an independent contractor.

Rolanda: Okay, thanks, Mark. That's pretty much pretty it from question perspective. Over to you, Scott.

Scott: Okay. Thank you very much. You can see the contact details if you want to get there. On Friday, Mark's colleague, Neil was chatting about. The section on the website is available and has information there. I know that the CIPD has a link to members if you're looking for further advice as well. And they may have waived, I've seen it somewhere that they've weighed the limits on calls that you can have when it comes to coronavirus on that particular one there. Legal Island, we have our own coronavirus section set up. In fact, we'll be sending out an email today just with the best, what we think are the best to get information on coronavirus and related subjects, like how to stay in touch and how to make homeworking worthwhile.

We have two more webinars coming up. You can see them there, 23rd of April, we've got Louise McAloon from Worthingtons, and I think Phil McCrea, I'm hoping, an occupational health doctor. They're looking at managing sickness absence. And then our next Employment Law 11 with Seamus McGranaghan, I'm sure we'll have lots of coronavirus questions, will be on the 1st of May. If you're interested in the eLearning stuff, just drop us a line now and yes, we'll send you some details. If you want Debbie to give you a call or drop you a specific line, just type "Yes" in your little question box and we'll make a note of that and send it on to Debbie.

For now, thank you very much to Rolanda in Bangor for organising all this, and I believe that Mark, you're in Belfast, so thanks very much for doing that. If you have any other questions or topics that you think that you'd like us to cover, drop a wee line to Rolanda@legal-island.com . Thank you so much for listening. We hope you have a lovely Easter. Okay, take care folks. Bye-bye.