Employment and Equality Law Update
11 October 2013
Historically, Northern Ireland has tended to follow Great Britain’s lead in the area of employment law however we are now seeing an increased tendency for Northern Ireland to move in a different direction particularly in relation to the development of discrimination legislation. Local government is currently engaged in a public consultation on proposed changes to employment laws here. We are therefore waiting in anticipation to see whether Northern Ireland will follow the recent changes that have taken place in Great Britain or whether again, it will continue down its own path.
So what is actually changing in Northern Ireland?
Pensions – Auto-enrolment
New legislation came into force on 30 June 2012 requiring all employers in the United Kingdom to automatically enrol eligible workers into an eligible pension scheme and to make contributions into that pension scheme. Individuals who do not want to be members of the pension scheme can choose to “opt out”.
Companies must have a qualifying pension scheme in place and operational by their designated staging date.
Helpful guidance into issues such as the eligibility of existing pension schemes and who qualifies as a worker for the purposes of the legislation can be found on The Pensions Regulator website at www.thepensionsregulator.gov.uk.
And what changes are potentially afoot...?
Department of Employment and Learning (“DEL”) Consultation on changes to Employment law.
Outlined below are some of the areas covered by the current DEL public consultation:
- Routing all potential tribunal claims through the Labour Relations Agency to give the parties the opportunity to consider the benefits of resolving the dispute without proceeding with the formal legal process;
- Consideration of the merits of increasing the current qualification period for unfair dismissal from one year to two years. This change has already taken place in Great Britain with the aim of reducing the number of tribunal claims and encouraging employers to recruit more staff;
- Reducing the cap for compensation in unfair dismissal claims;
- Reducing the period of consultation for collective redundancies;
- A review of the existing policy on compromise agreements which could include the potential for enabling employers to have protected conversations on sensitive topics such as performance on the basis that these discussions would not be admissible in an unfair dismissal hearing.
The DEL consultation closes on 5 November 2013 making it likely that any proposed changes will not be announced until well into 2014.
Zero Hours contracts
Zero hours contracts allow for a more flexible / casual workforce. The content of the contracts tend to vary from one employer to another however they generally provide that whilst the employer is not obligated to offer any work, when it does offer work, this must be accepted by the worker.
With up to 5.5 million workers engaged on zero hours contracts, employers are being heavily criticised regarding the lack of job security for the workers with campaigners for low paid workers arguing that they are being exploited by powerful employers.
The Business Secretary in Great Britain Vince Cable has only last month announced his decision to launch a consultation on zero hours contracts later this year.
The case of Noeleen McAleenan v Autism Initiatives NI (Case ref: 815/12) serves as a reminder to employers that having a Dignity at Work policy is not always sufficient when seeking to defend claims for discrimination.
The Claimant in this case brought a claim for sexual harassment. It was not disputed that the harassment had been suffered but the point to be determined in this case was whether or not the company could defend the case on the basis that it had taken such steps as were reasonably practicable to prevent the discriminatory acts taking place.
The Company had a dignity at work policy which was shown to staff when they first started employment and when they moved premises. The Tribunal concluded however that this was insufficient in these circumstances as it was well known by staff and managers that the harasser engaged in appropriate physical contact on a regular basis. The Tribunal commented that “In this case, senior managers were on notice that the harasser engaged in jokes, banter and hugging which could have amounted to sexual harassment depending on the circumstances and response of the victim”. The Tribunal further commented that the fact that the individual was “well known as what was termed a “huggy person” should have rung alarm bells” Under the Dignity at Work policy “there was a proactive duty on managers to intervene before problems escalated”. The Respondent was therefore held to be vicariously liable for the acts of sexual harassment.