Background:

On 4th June Tom Evans, Deputy Director of strategy in the European and Employment Relations division, and Dr Alan Scott from the employment relations policy and legislation branch of DEL presented a report on the responses to the extensive employment law review carried out last November.The consultation exercise covered two main parts - early resolution of disputes and better regulation measures. There were some 42 detailed responses on early resolution measures. The minutes of Hansard point to some interesting developments:

Early Resolution of Disputes

From our reading of Hansard it appears that an early conciliation service from the LRA (where tribunal claims are routed through the LRA to attempt conciliation before being allowed into the tribunal system) received almost universal support from respondents. Such a service was introduced in GB by Acas in May 2014 and the "LRA is at least looking" at introducing such a system in NI. There are some issues surrounding time limits for tribunal claims but these should not be insurmountable - most respondents favoured a 'stop the clock' mechanism. There was also some discussion at the Committee about the appropriateness of including equality cases within the early conciliation process.

The Hansard report states that a neutral assessment process, administered by the LRA, was also met with positivity, although it's fair to say from the consultation meetings involving Legal-Island customers that early neutral evaluation, as it was then called, was not met with universal approval. There was some discussion of an option for piloting early neutral evaluation, so any concerns might be ironed out. There was also discussion on a possible trial mediation training programme, similar to a trial in GB.

The Hansard report states that the DEL Minister hopes to go to the executive with a paper, hopefully before the summer recess. Some changes in this area will require primary legislation because they will lead to changes in the role of the LRA.

Better Regulation Measures

There were 35 responses to better regulation measures and these highlighted the split between employer organisations and employee organisations but also between Sinn Féin and the DUP, where, broadly speaking, one party favours what might be termed more employer-friendly changes and the other favours more employee-friendly changes (or status quo, as appropriate, in the context of the employment law review). Achieving legislative change might prove more difficult in this area as a result.

There is much discussion over the relative merits of extending the unfair dismissal qualifying period to two years and why there is such a lack of evidence for it impacting on jobs one way or the other. Again, at meetings to discuss the DEL review last year, there were almost no HR professionals in favour of extending the one year qualifying period. However, in the responses the split was 20 against extending the qualifying period and 15 in favour. The qualifying period is described in the Hansard minutes as "a cross-cutting and sensitive issue". Any change to the qualifying period will require primary legislation.

There was also discussion on consultation periods for collective redundancies and whether these should be reduced from the current 90 day requirement for staff reductions of 100 employees or more within the context of the meaning of 'establishment', as covered by recent case law. Whether to include fixed term contracts in the definition of employee numbers was also discussed. There was also some discussion around whether a code of practice or guidance on the quality of consultation would be helpful.

Compromise agreements caused few concerns amongst respondents or the Committee, although the report highlighted some concerns for an increase in 'satellite' litigation should protected conversations be introduced.

The final area discussed was whistle blowing or public interest disclosures. NI retains the anomaly that employees may make a whistleblowing claim in relation to breaches of their own contract of employment (hardly 'in the public interest') and there was strong support for removing that loophole. There seems to be strong support also to bring NHS employees within the ambit of the legislation - they were inadvertently left out of the legislation. There was also strong support to make employers vicariously liable for good faith whistleblowers who genuinely blew the whistle on something that was in the public interest. Whether any disclosures should continue to need to be in good faith divided opinion.

Tom Evans also quoted:

"We will go back to the Minister on the basis of this engagement. When the Committee has reviewed the Hansard report of the session, we would appreciate hearing any views that it may have. We are happy to come back at any stage. It is a fairly extensive process, and it will continue to be that. If it leads to legislation, obviously, the Committee will be engaged."

You will find a link to the full discussion here:
http://www.niassembly.gov.uk/Documents/Official-Reports/Employment/2013-2014/140604_EmploymentlawconsultationDEL.pdf