Employment Law: The disparity between Northern Ireland and Great Britain  

In this article, Neil McLeese, CEO at BeyondHR, discusses the disparity in employment law between Northern Ireland and Great Britain

The disparity between Northern Ireland and Great Britain

From flexible working conditions and carer’s leave to redundancy protection, the UK has recently experienced a number of changes in employment laws, with more coming into force in September. Meanwhile, on the other side of the pond, legislation has remained largely static in the past few years.  

The Covid pandemic followed by a breakdown of the Northern Ireland government has had a profound impact on various aspects, including employment law. The absence of a functioning government resulted in a lack of legislative activity leading to delays in addressing updates or reforms to employment laws. Additionally, with no governing body to oversee enforcement there was a degree of legal uncertainty for employers (and employees alike).  

With the government now back in action, legislative activity has resumed, and efforts have been made to address the delays and uncertainties caused by the two-year hiatus.  

Since April, employees in GB have been allowed to request flexible working hours from day one on the job. Even though a different deal may have been previously established between the candidate and the recruiter, the newly employed worker will have the statutory right to change their hours or place of work, for example, eradicating the previous waiting period of six months of employment to do so.  

Employees will also be able to make a flexible working request twice a year. Employers have two months to respond and must agree unless there is a genuine business reason not to do so, including the burden of additional costs, or not being able to meet customers’ demands. 

In NI, many employers have embraced and even encouraged hybrid work patterns, especially since the Covid lockdown. However, employees still must have worked at the company for 26 weeks continuously before requesting a flexible work pattern – and are only allowed to make a second request after 12 months.   

In September, another piece of legislation is expected to come into force to offer more flexibility to workers with unstable or unpredictable working hours. Zero-hour workers, agency workers, and those on fixed-term contracts lasting less than one year will have a legal right to ask for more predictable working patterns once they have 26 weeks of service or more. This includes the number of hours they work, as well as the days of the week or the times of the day they provide their services. They will also be able to debate the period they are contracted to work for the company. 

Employers will have the right to refuse the request for eight statutory reasons, much like the ones for denying claims for flexible working hours. Meanwhile, in Northern Ireland, the minimum service requirement for bringing a claim remains at one year.  

Another substantial change is the new redundancy protection law for parents on maternity leave, adoption or shared parental leave whenever they come back to work. The new legislation has extended parents’ protection from the time they disclose their pregnancy to their employer for up to 18 months after the expected week of childbirth, the child’s date of birth or adoption. If there is a prospect of redundancy for the parents, a suitable alternative job must be offered. 

Unfortunately, the laws in Northern Ireland are still not as sympathetic to new parents. If their role is made redundant during maternity leave, the employer is legally required to give them the first option of suitable alternative work that is available, but new parents can’t count on that safety net of one year and a half to organise their lives and finances around the arrival of a new child. 

The Carer’s Leave Act, which has recently come into force in GB, contemplates a working category that amounts to 5.7 million people, and that has become increasingly important when supporting older, disabled or seriously ill friends or relatives. The new legislation provides all carers in employment with a new statutory right to take five days of unpaid leave from work each year to fulfil their caring responsibilities – they can use this time to care for a dependent or give another carer some respite for a week, for example. 

Once more, the disparity between legislation in Northern Ireland and the rest of the UK is evident. The Department for the Economy has affirmed publicly a new employment rights bill is in the plans and the right to carer’s leave will be considered. By doing this, the NI Executive could prevent employees being forced to leave the workforce due to caring responsibility – subsequently improving the economy. 

In October, with the Worker Protection Act coming into effect in GB, employers will be required to take proactive steps to prevent their employees from being sexually harassed at work. Until then, the Equality and Human Rights Commission will be publishing new guidance or a new Code of Practice on what these proactive steps actually mean. However, the Act already establishes that if the employer is found to have breached its duty, the Employment Tribunal will be able to uplift compensation by up to 25% – which could turn out expensive if an employee succeeds in a claim for multiple incidents of harassment. 

Surprisingly enough, this is a major piece of employment legislation in which Northern Ireland has been more progressive – and by almost 20 years. The amended Sex Discrimination Order 1976, which came into force in 2008, provides that employers must take reasonably practicable steps to protect their employees from harassment by third parties (such as clients or customers). However, it only applies where such harassment is known to have occurred on at least two other occasions.  

It is imperative the government modernises the outdated employment laws in Northern Ireland to bring them in line with Great Britain. The government must address the evolving needs of both workers and business in this dynamic era of work. As well as safeguarding the rights of workers, employment laws also provide the necessary framework for businesses to thrive – creating social wellbeing as well as economic prosperity. 

Neil McLeese
Neil McLeese

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