Ciara Fulton Joanna Mackey January 18 2023 What's happening in employment law in Northern Ireland in 2023? Lewis Silkin LLP | Employment & Immigration - United Kingdom Ciara Fulton, Joanna Mackey Employment & Immigration Post-Brexit reformGB private members' billsModern Slavery ActGender pay gap reportingParental bereavement leaveDomestic abuse leaveZHWsSchool teachersNLW rises by nearly 10% and other increases to rates and limitsExtra bank holidayCase law decisions to watch out forOther trends and policy areas to watchWith the continuing lack of a functioning Executive and Assembly in Northern Ireland, employment law remains more or less in stalemate. That said, the active post-Brexit reform agenda impacts Northern Ireland and the decision in an important holiday pay case is expected. This article presents a round-up of what to expect. For further details about the employment law trends of 2023 in Great Britain and the Republic of Ireland, see "What's happening in employment law in 2023?" and "What's happening in employment law in Ireland in 2023?".Post-Brexit reformThe Retained EU Law (Revocation and Reform) Bill is the most significant development on the horizon in Northern Ireland (for further details, see "What might the Brexit Freedoms Bill mean for employment law in Northern Ireland?"). This UK-wide bill aims to speed up the removal of certain retained EU laws by giving ministers powers to revoke or replace them. Importantly, it also includes a "sunset clause", meaning that, at the end of 2023, many retained EU laws will disappear unless restated or replaced. This potentially affects a huge amount of employment law, including:the Working Time Regulations (Northern Ireland) 2016;the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) (insofar as it implements EU law);the Agency Workers Regulations (Northern Ireland) 2011; andthe Employment Equality (Age) Regulations and the Employment Equality (Sexual Orientation) Regulations.It is reasonably likely that the 2023 deadline will be relaxed before the bill passes. Even if the deadline slips, it is expected that government departments in Great Britain will get started on shaping the reform programme from early in 2023. This is likely to mean a wave of consultations and proposals for creating new laws to replace and potentially scale back existing EU-derived versions. How Northern Ireland fits into this remains to be seen, given there is no functioning Executive or Assembly in Northern Ireland. However, Northern Ireland will be impacted by any changes to UK-wide law, such as TUPE (insofar as it implements EU law).The potential significance of this bill should not be underestimated: it could result in the biggest shake-up of employment laws across the United Kingdom in a generation. Law passed quickly is rarely problem free, so it is likely that there will be plenty of troubleshooting and legal challenges as the new regimes come into place.GB private members' billsA significant development in Great Britain are the number of private members' bills making their way through the parliamentary process, heading towards becoming law in 2023. Some of these bills introduce employment law reforms that were originally going to be included in the GB Employment Bill.The proposed GB reforms include:changes to the flexible working regime;the introduction of five days' unpaid carer's leave each year for employees who have dependants with a long-term care need; andthe introduction of a new right to neonatal leave and pay, giving new rights to paid time off to parents whose babies spend time in neonatal care units.For further details on these and other GB bills, see:"Government backs new laws on carers, sexual harassment, flexible working, redundancy protection and more: Employment Bill by the back door?"; and"What's happening in employment law in 2023?".The bills introducing carer's leave and neonatal leave and pay are intended to extend to Northern Ireland. However, it will be up to the Assembly to decide whether to implement similar provisions to deliver each scheme in Northern Ireland and there are no plans for these at present.Modern Slavery ActThe UK government has previously said that it would toughen up the Modern Slavery Act (which applies to employers with a turnover exceeding £36 million) to:make existing reporting areas mandatory (rather than advisory);change the reporting deadline to 30 September each year; andrequire statements to be published on a new registry.A new bill, which includes some UK-wide provisions, was expected in the current GB parliamentary session but has not been brought forward yet.Gender pay gap reportingLegislation providing for gender pay reporting is in place in Northern Ireland but has not yet been brought into force. There will not be any progress until the Assembly is restored and, even then, some employers may be out of scope, assuming that the requirement will apply to employers with 250 or more employees, as is the case in Great Britain, and not extend to employers with 50 or more employees, which is a 2025 requirement in the Republic of Ireland. Employers who are in scope should note that when the requirement does apply in Northern Ireland, they will be required to carry out disability and ethnicity pay reporting, as well as gender pay reporting.Parental bereavement leaveSince 6 April 2022, employees in Northern Ireland have been entitled to two weeks' paid leave (it is paid provided they meet certain eligibility criteria) following the loss of a child from the 24th week of pregnancy or the death of a child under the age of 18. Statutory parental bereavement pay is administered in the same way as existing family-related statutory payments such as maternity, paternity and adoption pay. This brings Northern Ireland in line with the existing rights in Great Britain. Following consultation (which concluded on 19 December 2022) and agreement on subsequent regulations, these provisions are to be extended to include working parents who suffer the loss of a child through miscarriage. There may be some movement on this in 2023.Domestic abuse leaveEmployees in Northern Ireland who are victims of domestic abuse will be entitled to 10 days' paid leave each year to deal with issues relating to the abuse. This is a "day-one" right, meaning that no minimum period of service for qualification is required. This right is not yet effective (employers do not currently have to provide this leave) as the commencement date of the new right remains to be confirmed. Regulations are also expected, which will set out details of how the leave will work. Employers can, however, take steps within their businesses to prepare for this by creating an environment where employees feel they can disclose that they are experiencing domestic violence.ZHWsDraft legislation was introduced in the Assembly before it was dissolved providing enhanced protection for zero-hours workers (ZHWs) – these are workers on a contract where there is no guarantee that they will be given any work. The aim of the draft legislation is to provide a less precarious working environment for ZHWs. One of the key provisions is the banning of exclusivity clauses (terms in a contract which prevent ZHWs taking on other work). While the progress of the legislation depends on the Assembly being restored, it is one for employers with ZHWs to keep an eye on.School teachersPreviously, the recruitment of teachers in Northern Ireland was exempt from legislation prohibiting religious discrimination. Practically, this meant it was not unlawful for schools to discriminate against someone in the recruitment process on the basis of their religious belief. This exception was repealed in May 2022. The change is to be effective by May 2024, unless it is brought into force earlier.NLW rises by nearly 10% and other increases to rates and limitsThe national living wage (NLW) will rise to £10.42 from April 2023, an increase of 9.7%. This is the largest increase to the NLW since its introduction in 2016 and reflects the steep rise in inflation and cost-of-living crisis. Employers may find they employ more people on the cusp of NLW rates and therefore may need to pay greater attention to NLW compliance. The current rates for the NLW and the national minimum wage are set out on the government's website.Statutory sick pay will go up to £109.40 in April (from the current rate of £99.35) and the weekly prescribed rate of statutory maternity pay (and pay for other types of leave) will be £172.48 (up from £156.66).The increase in the weekly pay rate used for statutory redundancy payments and other purposes and the 2023 revised basic and unfair dismissal amounts have not yet been announced.Extra bank holidayThere will be an extra bank holiday on 8 May 2023 to mark the coronation of King Charles III. As with the extra day for Queen Elizabeth's funeral, this does not automatically mean that everyone gets the day off. In Northern Ireland there are 10 usual bank holidays, with a range of practice applying in relation to these holidays depending partly on the industry sector and partly on geography. Potentially, there may also be religious or political opinion discrimination issues associated with giving, or not giving, this bank holiday.Case law decisions to watch out forThe most anticipated court decision in Northern Ireland in 2023 is that in Chief Constable of the Northern Irish Police v Agnew. This relates to the calculation of holiday pay and whether a three-month gap between underpayments of holiday pay extinguishes a claim. It will also address whether leave can be disaggregated as Working Time Directive, Working Time Regulations and contractual leave or whether all leave is a combination of different types of leave. The appeal was heard by the Supreme Court in December and a decision is awaited.Keeping an eye on what is happening in Great Britain, some key cases employers should watch out for are as follows:IWUGB v CAC (on whether Deliveroo riders have freedom of association rights given their lack of employment relationship);Bailey v Stonewall, Higgs v Farmor's School, Mackereth v DWP (these all concern the rights of people to manifest so-called "gender-critical" views. The "clashing of rights" in the workplace looks set to continue as a theme for 2023, following high-profile cases last year, including in the Forstater case (for further details, see "Maya Forstater wins gender critical belief claim"));Manjang v Uber Eats (on whether Uber's usage of facial recognition system amounted to indirect race discrimination);Kocur v Angard (on the rights of agency workers to be considered for vacancies);HMRC v Professional Game Match Officials (on whether His Majesty's Revenue and Customs was right to have determined that match officials should be taxed as employees);Mercer v Alternative Future Group (on whether an employer may take action short of dismissal against workers who have gone on strike);R v Northern Derbyshire Magistrates Court (on the liability of administrators to file a form HR1 in the context of proposed collective redundancies); andUSDAW v Tesco (on whether employees may secure an injunction to stop them being dismissed and offered reengagement on inferior terms).Other trends and policy areas to watchIn the meantime, employers are likely to remain focused on how to support their staff through the ongoing cost-of-living crisis. Strike action and threats of strike action are also likely to affect unionised employers, where Northern Ireland has not reformed industrial action law in the same way as Great Britain. Many employers will be embarking on redundancy or restructuring programmes.However, alongside the economic downturn, there is an ongoing skills shortage and battle to attract good people. It is therefore expected that there will be ongoing efforts to "do the right thing" and create the right culture, with menopause policies becoming mainstream, fertility policies gaining traction, and employers under continuing pressure to embrace flexible and remote working including remote working from overseas locations. It is further hoped that climate and sustainability will feature more highly on the employer agenda.For further information on this topic please contact Ciara Fulton or Joanna Mackey at Lewis Silkin by telephone (+44 20 7074 8000) or email ([email protected] or j[email protected]). The Lewis Silkin website can be accessed at www.lewissilkin.com.