‘Good Jobs’ Podcast: Unpacking the Way Forward

In this episode, Belfast employment partners Ciara Fulton and Paul Gillen introduce the Department for the Economy’s “Way Forward” response to the recent ‘Good Jobs’ Employment Rights Bill consultation, marking a potentially major step forward for employment law in Northern Ireland. They set the scene for what these wide-ranging reforms could mean for the world of work in NI, and how organisations can start to think about the changes on the horizon. This episode launches a five-part mini-series, with each instalment set to explore the proposed Bill’s core themes in more detail: terms of employment, pay and benefits, voice and representation, and work-life balance. Ciara and Paul provide a high-level perspective on the Bill’s ambitions and the direction of travel for employment rights in Northern Ireland. Tune in for a concise introduction to the ‘Good Jobs’ consultation response and join us for the rest of the series as we unpack each theme. 

Transcript

‘Good Jobs’ Podcast: 

Unpacking the Way Forward

Ciara: Hello and welcome to our special podcast episode on the Good Jobs Employment Rights Bill in Northern Ireland. I'm Ciara Fulton. I'm a partner in the employment team here in Belfast.

Paul: Yes, hello everyone. And I'm Paul Gillen. I'm also a partner in the employment team with Ciara. So, Ciara want to set the scene for today's podcast?

Ciara: Absolutely Paul. Well today we're diving into the Department for the Economy's long-awaited response to the Good Jobs Bill consultation. This is possibly the most significant overhaul of employment law in Northern Ireland in over a decade, so there's lots for employers and HR teams to get their heads around.

Paul: Thanks, Ciara. Yeah, there's certainly a lot for employers to get their heads around. The department's response, which is called the way forward, sets out a raft of proposals across four main Themes. And they are terms of employment, pay and benefits, voice and representation, and work-life balance. Now what we'll do is we'll take you through the key changes in each one of those Themes and what they could mean for employers in practice. But watch out for future podcasts going into each Theme in a lot more detail. So, Ciara, what about Theme A?

Ciara: Yeah, so Theme A is possibly one of the most important Themes in terms of what we're going to see coming out of the good jobs consultation in my view, Paul. I'm sure you probably agree with that.

It includes a lot of new proposals around changes to terms of employment. One of the headline proposals really coming out of the consultation is the department's response in respect of ending exploitative zero hours contracts.

We're not going to see the total abolition of zero hours contracts. Many employers will be glad to hear because of course zero hours contracts can often offer certain benefits and flexibility for some workers like students perhaps or carers. But the department is keen to stop by to abuse as they can also lead to uncertainty and instability for workers both financially and personally. So, the department has set out a number of changes which they call proportionate changes to end the exploitative practices in this area.

So first up, the bill is going to introduce the option for workers who are on zero hours or no hour’s contracts to move to banded hours contracts. And those would be contracts that more acCiarately reflect their working patterns. So, if they're regularly working more hours in their contract states, they'll be able to apply for a banded hours contract.

There's also going to be requirement for employers to inform zero and low hours workers about that right to banded hours contracts in their written employment particulars when they start employment.

The proposals also include new rights to reasonable notice of shift patterns and compensation if shifts are cancelled at short notice. And now, again, we don't know what reasonable notice is or what that compensation might be. And the specifics around that are yet to come following further stakeholder engagement. But it's a clear move towards predictable working arrangements and keeps us very much in line with GB in that area. And finally, probably as anticipated, there's going to be a ban on exclusivity clauses for contracts that are below the lower earnings limit, which is currently about £125 per week. And that would bring us in line with the UK and the Republic of Ireland. So, we see some proposals for change that are going to bring us in line with the Republic of Ireland, like the banded hours, the remainder bringing us more in line with GB. But still much of the detail to be hammered out via stakeholder engagement with the department over the next coming months.

Paul: Yeah, it certainly will be of interest to employers who rely on flexibility in its workforce. And Ciara, the Theme continues along that line. Another big area in this Theme is in relation to fire and rehire. This is a practice where an employer seeks to alter individuals or a group of individuals terms and conditions of employment by first dismissing or firing them and then rehiring them on altered or less favourable terms. Now, this has been used by many employers to ensure they can align terms and conditions to their business need where consultation may have failed. Now, the bill will make it automatically unfair to dismiss an employee just to change their terms and conditions unless the employer can show that it was in response to immediate financial difficulty, which could not have been reasonably avoided and where the only alternative was job losses. 

This mirrors the approach being taken in Great Britain, but it will certainly make it much more difficult for employers to rely on this method of changing terms and conditions and will certainly lead to more intense consultation about changes in the future. But not only that, we also see changes to the written statement of particulars employment. So, employers will need to provide these both to employees and workers on or before day one. Not only to employees and within two months as is currently the case under the legislation. And the statement will have to have more detail so there'd be further detail required on pay, working hours, paid leave and information on the right to join a trade union. And also, it has to be noted that existing staff can also request an updated statement when the new provisions come out as well.

But Ciara, over to you for Theme B.

Ciara Fulton (05:38)

Thanks Paul. So, lots going on there in Theme A So lots for employers to start preparing for. And it's no different really when we look at Theme B of the consultation, which is around the whole area of pay and benefits. There are some important changes here too.

So, at long last in Northern Ireland, we're going to have legislation that will require tips to be passed on to workers in full and will also require employers to keep records of how those tips are distributed.

That was an area where we were lagging behind both GB and ROI who had introduced similar requirements and there is also going to be a statutory code of practice which will set out those basic principles of fairness and transparency in this area. And workers will have a right to request access to the employer's records to make sure that they're being treated fairly.

Pay slips are also going to get an upgrade. All workers, not just employees, are going to have a right to an itemized pay statement. And if pay varies by hours worked, the pay slip is going to have to show the number of hours that are being paid for. So that's going to bring us again in line with GB and again, give that greater transparency to workers, but requiring employers to look at their payroll, look at their systems for calculating pay and make sure that they have a method and that complies with the new legislation when it comes in. Another item that is close to my heart is the proposal by the department to change the method of calculating holiday pay from a 12-week reference period to a 52-week reference period. And so, it's well recognized, I think, by employers that 12 weeks is really quite a cumbersome period to have to look at for calculating normal pay. So, this would ease out seasonal fluctuations or other variations over the course of the year and make payroll much easier for employers to administrate Unfortunately for employers, unlike in GB, there's still no two backstop for holiday pay claims in this jurisdiction. So, claims here can still potentially go back to 1998. So, some changes but probably for most employers not enough changes. We're seeing some changes in the area of working time as well aren't we Paul?

Paul: You're right in terms of record keeping and working time record keeping, the department has said that it's not increasing the requirements but will work with the Labour Relations Agency to produce clearer guidance. So, in Great Britain employers don't need to keep detailed daily records if they can show compliance by other means, for example through the record required for national minimum wage, but that's not being adopted here. 

So, although there seems to be no appetite to increase the burden of more stringent record keeping or to move to the GB model, it will remain a set out in the Working Time Regulations Northern Ireland 2016. So, employers must continue to keep records of the hours their staff work to demonstrate compliance with certain aspects of the regulations.

But also, another key area in this theme is that many of our listeners will understand that there's been a move in many jurisdictions to provide a right to disconnect. And this is especially in a world of widespread smartphone use and remote working. And whilst there's not going to be any strict regulation in this regard, it is proposed to follow the model in the Republic of Ireland. And we will see the right to disconnect coming through a statutory code of practice.

So, that is it for Theme B. So, Theme A and Theme B have an awful lot for employers to think about. And if we move now to Theme C, which is about voice and representation, this is about giving workers a stronger voice. And social dialogue, as we know, has always been seen as key to achieving positive workplace relationship. But trade unions will have a new legal right to request access to workplaces. And this includes digital access as well, and this is for the purposes of recruitment and engagement with members or potential members of the union. But this access must be reasonable in terms of when it happens, but also to comply with health and safety and security provisions as well. another area of change is that the threshold for the numbers in employment for union requests is being lowered from employers with 21 employees to employers with 10 employees. Certainly, a big change for smaller businesses, especially here in Northern Ireland where there's still a very high proportion of small businesses. But the department is also looking at other areas in terms of engagement with unions and employers.

Overall then, Ciara, employers should be set under this Theme for more interaction with unions as well as possible requests for recognition. But we're also seeing that there's going to be more interaction, which will make it feel more like the partnership approach that many of us will remember from the mid-90s. So, a lot to get our heads around with that interaction between employer and trade union.

Ciara: At least I suppose on the industrial relations side, there had been discussion about reducing the notice period for industrial action from seven days to five days in the consultation documentation but thankfully from an employer's perspective that's not being taken forward, so it means that employers still have at least one week notice if industrial action is about to take place. On the other hand, we are going to see changes around the administration of the balloting process and the department is proposing to roll out e-balloting for votes around industrial action. So that would bring us in line with GB and really just modernise, I suppose, the legislation. So, nothing controversial there.

No major changes either for protections for trade union representatives. But importantly, we are going to see a code of practice which is going to set out minimum expected behaviours between parties when you're engaging with each other. So, this might include behaviours by union officials and a possible mechanism for complaint about union officials, which is something that was raised by employers in respect of the consultation. And finally, then in this area, one of the one of the changes that the department has said it is going to introduce is greater protection for employees who take part in industrial action. So rather than just a 12-week time limit for the protection against dismissal, that's going to be abolished. And if an employee can link dismissal to having taken place in respect of industrial action, then that will also give them a right to claim that their dismissal was unfair on that basis. So, some important protections in this area, many of which I suppose I thought might be longer term rather than the shorter-term proposals we now see in the response documentation.

One of the areas where we did expect to see great changes though, Paul, was in the whole area of work life balance and family friendly rights. So, this is Theme D and Northern Ireland, I suppose, had been lagging behind both GB and ROI in terms of the protections for families and for work life balance. And so, we do see a number of proposals in this area, which I think would be welcomed by employers and employees alike. 

So first one that we'll see coming in is that flexible working is going to become more flexible I suppose it's going to become a day one right and employees are going to be able to make two requests a year rather than just one as it is at present. Employers will have to act reasonably if they're going to refuse the request and employees won't have to state the required potential impact of their request as they currently do. But the statutory grounds for refusal for an employer is unchanged here which is something that we might not necessarily have expected to be the case. So that will bring us in line again with GB

Paul: Yeah, and we are seeing other changes afoot Ciara in relation to certain types of leave. Firstly, is carers leave which will be introduced and this will allow one week of unpaid leave per year for employees with caring responsibilities. Now the department's long-term aim is that this moves from unpaid leave to being a paid right for employees, but that depends on funding and developments in GB, so another one to keep a watching eye on. But what about other types of leave, Ciara? What are the changes there?

Ciara:

Yeah, we're seeing new rights in relation to neonatal care leave and pay for neonatal care leave. And this will see parents of babies who are admitted to neonatal care in the first 28 days after birth and who spend at least seven days in care. Well, they'll be entitled to up to 12 weeks neonatal leave. They would be entitled to that again from the first day of employment and they would be entitled to pay provided they have 26 weeks service and earn at least the lower earnings level of £125 per week that I mentioned earlier. So that's again bringing us in line with GB and something that will be quite new for employers here and something that we need to get to grips with for pregnant employees returning from family leave. Do you want to discuss that?

Paul: Yeah, that's right. apart from the new leave that we've outlined there, another area of protection will be enhanced redundancy protection. And this is for pregnant employees and those returning from family leave. Now, the enhanced protection is that employees then will have the protection lasting for 18 months from the date of birth, stillbirth or adoption. Now, this just means that it gives more employees priority status when you look at suitable alternative employment in redundancy situations. And whilst this be welcome for many employees, we still need to get the detail of this and also to look at whether there's going to be further practical guidance for employers and how this will work.

But there's also the practical issue of for employers that are going through redundancy, what happens if there's more than one person with that enhanced protection? So how do you establish who gets the job out of out of that pool of people?

So yeah, a lot through the leave and the protections. But Ciara, what about any other key areas in this thing?

Ciara: Yes, so the last area where we see changes is in the area of paternity leave, which we already have. Of course, this is again more about making this more flexible for fathers and the right to paternity leave will be available from day one. So, removing that 26-week qualifying period and at present fathers can only take the leave as a single two-week block. But now they will have the right to take that leave in two set, one week blocks they'll also have a longer period of time to take that leave so at the minute you can only take it within 56 days but once this change comes in they'll be able to take it at any time in the first 52 weeks after birth or adoption and notice periods for paternity leave will also be reduced to 28 days for each period of leave whereas previously that was 15 weeks and there is a comment in the response document as well might legislate to make it possible to increase the duration of paternity leave but that's longer down the line and more about what's going to happen in the future. So for employers what you need to be doing, well probably nothing just yet but this is one of those areas where we might see changes in the shorter term and at that stage put in place your own policies and procedures for employees and be able to be compliant with these changes from the point in time when they come in.

Paul: So yeah, a lot of ifs and buts there, a lot of information there on the key themes. But now It's also worth just spending a few minutes highlighting some of the areas that aren't moving forward just yet.

I expect that that will happen as it moves through the Executive and the Assembly as well. There will be changes and tweaks as we go through. So again, just keep an eye out for some of the changes that will be coming down the track.

One of the big areas that I think didn't make it in was around the whole complex area of employment status. And this is where someone is either an employee, a worker or self-employed. 

Now, what we had thought was that there be a change from this three tier approach to a two tier approach of employee and self-employed. So that would align us to the Republic of Ireland. But this, from what we know from the Way Forward document, has been put on hold for now. But it's not the end of the matter. The department will plan to look at what is happening in GB, but also on any further guidance that's required for employers.

So, the two tier approach may still come down the track, but for now that is not the way we're going forward. The second area is in TUPE. And TUPE are the rules and protections for employees in business transfers and service provision changes or outsourcing of services. And there have been changes in TUPE since 2006 in GB, but in Northern Ireland, we didn't change our regulations to follow suit. So that means that there's still quite a bit of divergence in how TUPE runs across NI and GB. So we may see future changes coming down the track on that, but I don't think it was seen that this was a key area for changes in employment regulation just now.

So, Ciara, suppose what we need to look at now is what's the next steps to all of this?

Ciara: In terms of next steps, Paul, the minister we understand has written to the executive to seek endorsement for these proposals and the aim is to have a draft bill by January 2026. And the hope then is that that will pass before the assembly mandate ends in 2027. So, some changes like payslip requirements, for example, could come in sooner via secretary legislation or might see new codes of practice or guidance sooner, but not everything will happen at once. So, the good news for employers is that there will be a phased transition with plenty of guidance and support for employers and employees before the major changes take effect.

Paul: Well, from what we've gone through, Ciara, that certainly was a whistle-stop tour of the Good Jobs Bill of Proposals. And from what we've said and from what listeners may have read about it, it is a huge package of reforms. And whilst, as you say, still a lot of detail to be worked out it's clear that the employment law landscape in Northern Ireland is set for a major shake-up in the next couple of years.

Ciara: And thank you for listening. We update you as the bill continues to progress. And if you've any questions or want to discuss how these changes might affect your business, please do get in touch with us here at Lewis Silkin

Paul: Yeah, as Ciara said, thanks for listening. And don't forget to check that Good Jobs Build dashboard on our website. And this keeps you up to date with all the developments as we go through the changes. But until next time, goodbye and keep an ear out for those future podcasts.