One of the most common mistakes people make is to confuse the terms “Great Britain” and “the United Kingdom (UK)”. The distinction is important not just for geographers, but also for employment lawyers. Great Britain, quite simply, consists of England, Scotland and Wales. The UK includes England, Scotland and Wales, but also includes Northern Ireland (NI). In this article Lynda Macdonald outlines the differences in employment law between Great Britain and NI, and throughout, the term “Britain” is used to denote Great Britain.
Employment law for Britain is determined by the Westminster Government, ie it is not devolved to Scotland or Wales. Employment and discrimination law was devolved to the NI Assembly in 1998, although some legislation such as the Data Protection Act 2018 and the General Data Protection Regulation (GDPR) applies to NI as well as the rest of the UK. Over the years, most of the legislation passed by Westminster was also enacted in NI with the result that most employment rights are, in practice, the same as in Britain (although the legal references are often different due to NI specific legislation). There are, however, some divergences and this article explains what the main differences are.
Backdated claims for holiday pay
In July 2015, legislation was implemented in Britain to limit backdated claims for unlawful deductions from wages to two years before the date of the tribunal claim. This was introduced principally to limit backdated claims for unpaid holiday pay. There is, however, no back-stop limitation period in NI in respect of claims for backdated holiday pay.
In Britain, the statutory procedure for handling requests for flexible working was abolished in June 2014 and replaced by a simple requirement for employers to deal with applications “in a reasonable manner” within a period of three months. A new Acas Code of Practice was introduced to provide guidance to employers as to how requests should be handled. The Code largely mirrors the previous statutory procedure.
In NI, flexible working requests must still be dealt with according to the statutory procedure. Under the procedure, the employer must in most cases meet with the employee to discuss his or her request, provide written feedback on the grounds for any rejection and allow a right of appeal — all within mandatory timescales.
In Britain, the Equality Act 2010 was brought into force in order to harmonise all the previous laws on discrimination into one comprehensive piece of legislation. Some new provisions were also introduced. Because this Act was not introduced in NI, the position there departs from the position in Britain in that NI retains different statutes dealing with different types of discrimination such as sex, race, disability and age discrimination.
There is also a notable additional piece of legislation in NI — the Fair Employment and Treatment (Northern Ireland) Order 1998 — which specifically protects workers against discrimination on the grounds of religious belief and political opinion. This has no direct equivalent in Britain.
Fit for Work
A new, independent health and work assessment and advisory service (“Fit for Work”) was introduced in Britain in 2015. This service, which is state funded and so free to employers, consists of two elements: an advice line and website, and the provision (on referral) of employee health assessments by occupational health professionals. Since December 2017, employers can no longer make use of the referral and assessment service but can still seek free advice. The service is aimed at facilitating the return to work of long-term absent employees.
The Fit for Work service does not extend to NI.
Under the Small Business, Enterprise and Employment Act 2015, exclusivity clauses in zero-hours contracts are unenforceable in Britain, and so in effect banned. Additionally, since January 2016, a worker engaged on a zero-hours contract who has been dismissed or subjected to a detriment for breaching an exclusivity clause can complain to an employment tribunal. A dismissal in these circumstances is automatically unfair.
There is no regulation of exclusivity clauses in zero-hours contracts in NI.
Transfer of undertakings
In January 2014, amendments to the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) came into effect in Britain. TUPE protects employees whose employment is transferred to a new employer. Among other things, TUPE renders dismissals because of a transfer automatically unfair and prevents the transferee (new employer) from changing the incoming employees’ terms and conditions as a result of the transfer unless the dismissal/change is for an “economic, technical, or organisational reason entailing changes in the workforce” (known as an ETO reason). The main amendments in 2014 were as follows.
The ETO defence was extended so that it can be used in respect of dismissals that are due to the transfer itself as opposed to those “connected with the transfer”.
The ETO defence can (at least in theory) be used in respect of changes to employees’ terms and conditions that are due to the transfer.
Any consultation carried out by the new employer before the transfer can count for the purposes of complying with the collective redundancy rules.
Employers are permitted to renegotiate terms derived from collective agreements one year after the transfer, provided that the changes are no less favourable to the employees overall.
Employee liability information must be given no later than 28 days before the date of the transfer — the time period was previously 14 days.
The law on TUPE transfers in NI has not been amended and so remains as it was when originally introduced in 2006.
With effect from June 2013, amendments to the whistleblowing provisions of the Employment Rights Act 1996 were brought into effect. These amendments were introduced in NI through legislation that was implemented in 2017 in order to mirror the British reforms. The main new provisions are the following.
Protection against detriment only applies to disclosures that, in “the reasonable belief of the worker”, are “in the public interest”.
Disclosures do not need to be made “in good faith” in order to qualify as protected disclosures, provided the person genuinely and reasonably believes that the matter being disclosed is true.
If an employment tribunal finds that a disclosure was made in bad faith, it has the power to reduce the claimant’s compensation by up to 25%.
Workers who have made a protected disclosure are protected against detriment perpetrated by colleagues.
An employer can be held vicariously liable for detriments perpetrated by a worker’s colleague. This change brought employers' vicarious liability for whistleblowing in Britain into line with liability for discriminatory acts under the Equality Act 2010.
Termination of employment
In Britain, an employee whose employment is terminated needs to have a minimum of two years’ continuous service in order to be eligible to bring a claim for unfair dismissal. In NI, it is one year (as was the case in Britain until April 2012).
In April 2013, the collective redundancy consultation period where an employer proposes to make 100 or more employees redundant was reduced from 90 days to 45 days in Britain. In NI, it remains at 90 days.
Gender pay gap reporting
In the UK, the Equality Act 2010 (Gender Pay Gap Information) Regulations 2017 introduced a requirement on organisations with at least 250 members of staff to publish an annual gender pay gap report every April. This is calculated by taking the average hourly earnings of all employees in a company and establishing the discrepancy between male and female salaries.
Section 19 of the Employment (Northern Ireland) Act 2016 introduces the principle of gender pay gap reporting. However, this goes further and also covers pay gap reporting for ethnicity and disability, alongside workers as well as employees. It also makes it a criminal offence to not submit a report, which is punishable by a fine of up to £5000 per employee.
As yet, no regulations have been introduced to bring these provisions into operation, and it is also unclear what the reporting threshold will be.
Disciplinary and grievance procedures
In April 2009, the statutory dismissal and disciplinary procedure (DDP) and the statutory grievance procedure (GP) were abolished in Britain, and replaced with a revised Acas Code of Practice. NI has, however, retained the DDP, and so employers in NI must continue to follow a three-step procedure when carrying out formal discipline or dismissal or else run the risk of a finding of automatically unfair dismissal with an uplift in the employee’s compensation.
NI has not, however, retained the statutory grievance procedure which is instead contained in the Labour Relations Agency (LRA) Code of Practice which sets out standards of fairness and reasonable behaviour that employers and employees are expected to follow when dealing with a dispute. As with the Acas Code, the LRA Code is not legally binding but a tribunal can take account of any failure to follow it and adjust a claimant’s compensation (up or down) accordingly.
In March 2017, a number of amendments to the law on industrial action were brought into force in Britain through the Trade Union Act 2016. These included a new provision requiring that — in order for subsequent industrial action to be legal — 50% of union members who are entitled to vote in an industrial action ballot must do so (this is in addition to the pre-existing requirement for a majority of those actually voting to vote in favour of industrial action). Also, in certain important public services (including the health, education, transport, border security and fire sectors), 40% of members entitled to vote must vote in favour of industrial action (instead of the majority of those actually voting).
There are currently no plans to reform the law on trade unions or industrial action in NI.
In July 2013, reforms were made in Britain (through the Enterprise and Regulatory Reform Act 2013) in relation to settlement agreements (previously called “compromise agreements”). A settlement agreement is a signed written agreement which, in exchange for an agreed sum of money and/or any other agreed terms, acts to bar the individual from taking any of the claims referred to in the agreement to any court or tribunal.
As a result of the reforms, employers in Britain can, if they wish, offer employees a without prejudice settlement agreement to terminate their employment irrespective of whether any dispute has arisen between them. Neither the offer of a settlement agreement, nor any discussions about it are admissible at any subsequent tribunal hearing for unfair dismissal (unless the employee alleges that something improper was said or done during the pre-termination negotiations).
These provisions do not apply in NI where the term “compromise agreement” is still used.
In NI, the term “industrial tribunal” is still used, rather than “employment tribunal”. A separate forum, the Fair Employment Tribunal, deals specifically with cases of discrimination on the grounds of religious belief or political opinion in NI.
Since May 2014, anyone wishing to lodge a claim with an employment tribunal in Britain must first contact Acas with a view to achieving a conciliated settlement with the employer (although it is not compulsory to engage in the conciliation process, nor to settle). In NI, a potential applicant can, at present, proceed directly to tribunal. However, from 27 January 2020, it will become a legal requirement to notify the LRA and discuss the option of early conciliation before proceeding to tribunal. The time limit for bringing a claim will be paused for a month for early conciliation. The LRA is the NI equivalent to Acas in Britain.
Employment tribunal fees, introduced in Britain in July 2013 and now (since 26 July 2017) abolished, have never applied in NI.
In NI, arbitration is available as an alternative to bringing a complaint to an industrial tribunal for more than 50 types of claim. In Britain, however, it is only available for claims concerning unfair dismissal and flexible working.
Although government policy in NI has been that employment law should be broadly in line with the laws in Britain, differences have emerged over the years. It is hoped that the above summary of the main differences will be helpful.