Introduction
With regard to the Work and Families Bill we know that the major areas of reform relate to the concept of shared parental leave and the extension of the right to request flexible working to all employees. It would appear, at this juncture at least, that Northern Ireland is on a parity pathway regarding the GB timeframe.
The much-debated Employment Law Review of 2013 should see some movement later in October/November and from there we should know the basic content of a pending Employment Bill, which should receive Royal Assent around the end of 2015, with a view to implementation in early 2016.
Key reforms coming in under the Bill are:
Early Conciliation – mandatory routing of cases through the LRA to consider conciliation within a given time restraint and operating framework – looks due to be implemented as it was originally intended and described in the consultation and, as such, will generally reflect the process that now operates in GB through ACAS.
Inadmissible Offers of Settlement – this was the NI equivalent of a limited version of protected conversations – this provision looks destined to not be implemented, given the complexities and room for abuse of process. Thus, NI will continue to differ significantly from GB on this matter.
Compromise Agreements – given the lack of movement on inadmissible offers of settlement it would appear that the NI law on compromise agreements is to remain as it was. GB will continue to operate to separate rules governing what are now called settlement agreements.
Neutral Assessment – this is a new form of alternative dispute resolution, somewhere between mediation and arbitration, and seems to have been accepted in principle. The power to exercise it should be granted to the LRA with the fine detail to come later in detailed Regulations. This form of ADR is not operational in GB and there are no immediate plans to make it so.
Collective Redundancy Consultation Period – the reduction from the maximum 90 day period to 45 days (and for fixed term employees not to be part of the calculation) looks likely to proceed, despite some last minute lobbying pressure. This reform will bring NI into line with GB, with the only key difference being the implementation dates for the changes, given that GB reforms in this area happened in April 2013.
Public Interest Disclosure (Whistleblowing) – the four major reforms in this area in GB in June 2013 were the start of further intended reforms. It would appear that a public interest test, good faith requirement reform, coverage of NHS workers and vicarious liability of employers are all likely to be implemented in NI, thus mirroring the first batch of reforms implemented in GB from summer 2013.
Unfair Dismissal Compensation Cap – in GB this area of compensation was reformed in July 2013 with a cap at the lower of 52 weeks' pay or £74,200. This reform looks unlikely to be implemented in NI, although NI looks as if it will align with the GB formula for rounding up to the nearest Pound Sterling to bring that process in line with GB.
Unfair Dismissal Qualification Period – this issue proved contentious when GB increased the period from one to two years in April 2012. It would appear that NI will continue with a one year qualification period for claiming unfair dismissal, given the lack of evidence coming from the consultation for the need to have it increased.
Reform of Industrial Tribunals – With the much-vaunted "Underhill" reforms underway in GB since the summer of 2013 it would appear that in NI by November of this year we should have a better idea of the sort of Underhill-type reforms that will be implemented in NI.
Zero Hours Contracts Consultation – This process officially finished in NI on 29th September and meanwhile in GB the poor definition of a zero hours contract contained in the Small Business, Enterprise and Employment Bill meant further consultation on anti-avoidance measures went out in the summer of 2014. It remains to be seen if exclusivity is something to get worked up about in NI. By the end of 2014 we should have a clearer picture of where zero hours contracts are going.
TUPE-Related Reform – This area of employment reform seems to have dropped off the radar somewhat in NI in 2014 (GB made its changes in January 2014) and most commentators seem to put this down to the TUPE-related complexities associated with the pending Review of Public Administration (RPA), due to come into operation in April 2015.
Agency Workers - The review of the impact of the Agency Workers Regulations (NI) 2011 has been published and is available on the Department’s website. The report makes six key recommendations which are focused on improved information and guidance for workers, employers and agencies. The Minister will be looking to the report's recommendations to consider actions to ensure that all of the rights provided for in these regulations are availed of by agency workers, while at the same time ensuring that the regulatory requirements placed on agencies are not unnecessarily onerous. Departmental officials will now take these recommendations forward as actions within the 2014/2015 Business Plan.
Working Time – there are lots of changes due in this area – from consolidating 13 sets of regulations to implementing reforms caused by European cases such as 'Stringer' and 'Pereda'. In addition, the European Commission has recently asked National Governments and Social Partners for evidence around the implementation of the Working Time Directive. This will support their work on assessing the impact of the Directive and potentially bringing forward new proposals. The Commission’s timetable is quite short and the UK response needs to be returned to them by 31st October. Northern Ireland key stakeholders had been asked to input to this review and consultation finished on 19 September. Officials are considering responses and will be liaising with BIS in GB, the department that will be leading on the UK response. Any changes as a result of this review will obviously impact upon the consolidated Regulations.
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