Annual Review of Employment Law in Northern Ireland

Much of 2017 has been focused on legislative uncertainty in Northern Ireland. Implementation of the main provisions of The Employment Act (Northern Ireland) 2016 has been relegated to the side-lines, with regulatory progress apparently subservient to political whim. However, case law in GB has continued where the legislature has not, filling the gaps and providing a useful guide for employment law and HR practitioners.

This article considers some of the key developments over the past year in Northern Ireland, and the wider UK, together with a tentative look at what 2018 may bring, with GDPR and Brexit looming large on the horizon.

Statutory Developments

As mentioned above, legislative development in NI was in short supply in 2017; however the following managed to break through between January and October:

  • The Social Security Benefits Up-rating Order (Northern Ireland) 2017; provided the basis for increases to standard statutory rates such as Statutory Sick Pay and Maternity/Paternity pay.
  • The National Minimum Wage (Amendment) Regulations 2017; increasing the rate of national minimum wage:
    • from £7.20 to £7.50 for workers aged 25 and over;
    • £6.95 to £7.05 for workers aged 21 or over (but not yet 25);
    • £5.55 to £5.60 for workers aged 18 or over (but not yet 21); and
    •  £4.00 to £4.05 for those aged under 1
  • The Employment Act (Northern Ireland) 2016 (Commencement No.1) Order (Northern Ireland) 2017 brought into operation the provisions of the Act relating to Public Interest Disclosures.

UK Developments

Under the Equality Act 2010 (Gender Pay Gap Information) Regulations 2017 which came in to force in April, employers with at least 250 employees must calculate, and report the difference between male and female employees average hourly pay. Draft guidance aimed at managing reporting in both private and voluntary sectors was published in January detailing the steps which employers should take. While the equivalent NI Regulations have not been implemented, employers in NI should note that the 'GB' approval will be augmented in NI with penalty fines for non-compliance as well as additional reporting obligations re ethnicity and nationality.  

The implementation of Judicial Assessment allows employment judges to give impartial and confidential assessments on the strengths and weaknesses of parties' claims at an early stage of Tribunal proceedings. Still in its infancy, the value of the scheme is yet to be determined.

The 'Good Work' review by Matthew Taylor was published in July 2017. Employers in Northern Ireland should take note of the 30+ recommendations aimed at employment law. Depending on post-Brexit fallout and in the event of direct rule, there is every chance that many of the recommendations in the report (covering everything from minimum wage uplifts and employee tax status, to abolishing the 'Swedish Derogation' model in TUPE context) may shape the working landscape UK-wide moving forward.

The Employment Act (Northern Ireland) 2016 may remain in limbo, however the rulings throughout the rest of the UK in the last 12 months have helpfully provided an insight into lessons learned and how the courts here may interpret the 'core' areas of the legislation such as early conciliation, protected disclosures, zero hour contracts and protection for whistle blowers.

A look ahead at 2018

25 May 2018 represents the first 'known' of 2018, with the implementation of the GDPR. While many of the concepts are similar to the current Data Protection legislation, employers and HR professionals must plan for significant new provisions, a re-write of all contractual documentation and an awareness of reporting obligations and sanctions for failure.

In terms of case law developments, 2018 looks set to largely pick up where 2017 left off, with the latest instalment of the "gig economy" cases being heard by the Supreme Court with the Pimlico Plumbers appeal from the Court of Appeal on the status of 'worker'.

Closer to home, on 30 April 2018 the Supreme Court will sit for the first time in Northern Ireland to hear the 'Ashers' appeal on the widely reported 'Gay Cake' case. In another first, the hearing will be the first court proceedings in Northern Ireland to be live streamed.

With progress being made on the Brexit negotiations, it looks as though we may be in for a busy year in 2018, as new laws are introduced and those already in the pipeline are unlocked!

If you require advice now or in 2018, please feel free to contact our Employment Team at any time.

Date Published: 21 December 2017