Introduction

In the run up to the Legal-Island Annual Reviews of Employment Law (early bird savings end this Friday - see below) we thought it would be appropriate to take our traditional look back and glance forward to developments in employment law in Northern Ireland.

The year 2011 to date has been a potent mix of hardy perennials, some obscure technicalities and a departure from the GB norm. In terms of a slow down or decrease in volume it was widely acknowledged in 2010 that this would take some time as many legislative initiatives were already “pencilled in” for 2011 and that European-derived regulation was largely unstoppable, despite rumblings about last minute changes to things such as the Agency Worker Regulations (due to come in this week in GB and 5th December in NI).

We live, as always in Northern Ireland, in interesting times as the employment law landscape opens up before us and so we look back before we look forward.

Early in 2011 the Government in GB made its intentions clear with things such as the Employment Law Review (ELR) and consultations, including The Modern Workplace. Here in Northern Ireland the approach is much more akin to “let’s wait and see” and from here it could be a case of GB parity or indeed parity with necessary jurisdictional tweaks, although we deviated from the norm in relation to discipline and grievances in the workplace in April.

New Statutory Rules 2011

2011 in Northern Ireland saw 15 new Statutory Rules passed with some having more relevance to routine HR matters than others. The new rules came in at various times during 2011, most notably in April when the default retirement age was removed by The Employment Equality (Repeal of Retirement Age Provisions) Regulations (Northern Ireland) 2011. Employer responses to the abolition of the DRA will be discussed by Joanne White of Jones Cassidy Jones at the Annual Reviews of Employment Law.

However changes occurred at other times, for example, The Employment Rights (Increase in Limits) Order (Northern Ireland) 2011, implemented in February, saw the annual increase in rates for the purposes of calculating compensation / redundancy rates with the net result being, amongst other things, that the cap on "a week’s pay" now stands at £400 per week.

Perhaps the most significant Statutory Rules for 2011 relate to the Employment Act (NI) 2011, which saw Northern Ireland depart from GB with only a partial repeal of the much-loved statutory dispute resolution regulations. The Employment Act (Northern Ireland) 2011 (Commencement No. 1, Transitional Provisions and Savings) Order (Northern Ireland) 2011 - S.R. 2011 No. 159 (C. 8) spawned a series of “knock on” statutory rules on things such as:

*The new Labour Relations Agency Code of Practice on Discipline and Grievance,
* changes to industrial and fair employment tribunal procedures, and also
* technical changes to TUPE-related liability information requirements.

Other Statutory Rules brought into effect things such as:
* a tweak to the definition of indirect discrimination,
* time limit ramifications where a cross-border employment dispute case was being mediated,
* amendments to the amount a small employer can claim back in a statutory maternity pay context,
* changes to rates for statutory sick pay (now £81.60) and statutory maternity pay (now £128.73),
* technical changes regarding the Industrial Court, technical changes regarding the Transnational Information and Consultation Regulations, and
* corrections of drafting errors regarding Statutory Paternity Pay provisions and new rules on paternity leave.

Full details of all of the above will be found in the Annual Review pack material which goes into employment law at anorak depth, if that is your thing. Descriptions and online links to all of the relevant 2011 Statutory Rules are available in the Legal-Island email vault on our website. Full email service subscribers should enter their email address and password to access past emails going back several years and search for any item of interest.

New Primary Legislation 2011

Although enacted in 2010 the oddly controversial Bribery Act 2010 came into force in July 2011 and within the last number of weeks the first prosecution under the Act has occurred, with the individual concerned being a Court Service employee no less. It is the vicarious liability potential for the employer that has seemingly made this Act so contentious because Section 7 creates a new offence for organisations that fail to prevent persons associated with them from engaging in bribery on their behalf. This topic shall be addressed in detail by Kiera Lee of Mills Selig at this years’ Annual Reviews and it will be interesting to see what constitutes a reasonable procedure to address bribery in a work context.

In April the enactment of the Employment Act (Northern Ireland) 2011 was perhaps the most significant immediate development in 2011, with the repeal of the statutory grievance procedure and the retention of the statutory discipline and dismissal procedure providing countless column inches for employment law bloggers throughout Northern Ireland. Changes in Labour Relations Agency conciliation timeframes and processes, such as the pre-conciliation initiative, meant that many practitioners had to un-learn and re-learn aspects of the best known ADR protocols.

Questions now abound about what the differences between NI and GB actually mean in practice and how the industrial tribunals will address things such as:

* cases involving ex-employee’s in terms of grievances,
* when will there be a definitive failure to comply with the new Labour Relations Agency Code?
* the Code-based percentage adjustment regime in certain dismissal contexts; and so on.

The new LRA Code came into effect in April and is supported by some very useful guidance material and practitioners should have a sound working knowledge of both documents, given that the Code must be taken into account by the industrial tribunals where appropriate and the guide gives practical advice on matters pertaining to the Code.

Towards the end of this year we will see that hardy perennial makes it annual return in the form of the amended National Minimum Wage Regulations. October 1st will see the implementation of The National Minimum Wage Regulations (1999) (Amendment) Regulations 2011 with the Primary focus on increases the principal rate of the national minimum wage from £5.93 to £6.08 per hour. The Regulations also increase the rate paid to workers aged between 18 and 20 from £4.92 to £4.98 per hour and the rate to be paid to workers aged below 18 who have ceased to be of compulsory school age from £3.64 to £3.68 per hour.

The 5th of December 2011 will see the implementation of the Agency Worker Regulations (Northern Ireland) 2011, whereupon in principle agency workers will have the comparator based right to equal levels of pay, holidays and working time related rights after a 12 week qualification period and other rights such as information about vacancies and access to collective facilities and amenities from day one. This topic will also be addressed before and at the Annual Review and is likely to garner significant interest given the amount of agency workers currently under contract in Northern Ireland at this time.

2012 – At a Glance

* Parental Leave: In terms of what is ahead in 2012 the revised Directive on Parental Leave (not to be confused with paternity leave or proposed changes to family-related leave) is due to come into force in March 2012 with changes involving increasing the unpaid leave entitlement to 4 months for each parent and increasing the child age qualification age from 5 to 8 years old.

* Jubilee holiday: There will be a special bank holiday for the Queen's Diamond Jubilee. The 2012 late May bank holiday will be moved to Monday 4 June 2012 and an additional Jubilee bank holiday will be on Tuesday 5 June 2012. The extra bank holiday and extended bank holiday weekend will also apply to Scotland. According to the government press release schools in England and Wales will be able to close on Tuesday 5 June 2012 for the Diamond Jubilee celebrations. If a school is already closed on 5 June for half term or another reason, it will be able to close on an alternative day. Scotland and Northern Ireland will be making their own arrangements.

* Holidays and Sickness: At some stage in 2012 amendments to the Working Time Regulations are due to come into effect. There have been a number of judgments in the Court of Justice of the EU (previously the European Court of Justice) relating to the interaction of annual leave with sick leave, maternity leave and parental leave in the context of the European Working Time Directive (WTD). The judgments established the principle that workers who have not had the opportunity to take their annual leave because of sickness absence, maternity or parental leave in the current leave year, must be able to carry it forward into the following leave year.

* Equal treatment for the Self-Employed - This Directive must be implemented in Member States by 5th August 2012. The Directive gives self employed people and their spouses various rights, for example a right to maternity leave for 14 weeks.

* Pensions: Changes to pension laws are supposed to begin to come into operation in 2012 with the much vaunted NEST schemes and automatic enrolment being phased in according to employer size between 2012 and 2016. This is a very specialist area and it is still subject to change, so watch this space, but it's another topic that has its own session at the Annual Reviews.

From here 2012 remains a little unknown for Northern Ireland in terms of employment law developments. The impact of things such as - a new Minister for Employment and Learning, devolution of employment law clearly in operation in Northern Ireland, and stakeholder appetite for change, all mean that GB initiatives such as – consultations on the Modern Workplace and the Employment Law Review may or may not have a significant impact here.

Thus, in terms of what could happen soon we could very well see:

* After week 18 of maternity leave the leave converts into parental leave (with incentives)
* The right to request flexible working for all employees
* Flexible Working Codes – priority requests
* Amendments the Working Time Regulations to take account of ECJ decisions on long term sick and carrying over leave
* Tribunals - The Government proposes to require employment tribunals which have found an employer to have discriminated in contractual or non-contractual pay matters to make that employer conduct a pay audit, unless the tribunal is satisfied it would not be productive to do so.

That is as much as we may know about 2012 so as usual it is imperative that all practitioners keep their ear to the ground to keep abreast of any developments over the next twelve months.