Employment law – what's on a new minister's desk?
THE past three years have seen minimal policy development or response to some key issues for business in employment law.
As the talks intensify at Stormont to restore the Assembly and Executive what will be the key issues on ministerial desks in the event of a return to devolved government?
:: Holiday pay claims and the Agnew decision - Last June, in the case of the Chief Constable of the PSNI & another v Agnew & others, police officers succeeded in their claims that their holiday pay had been calculated incorrectly, by including only “basic” pay. It was found that their holiday pay should have included other elements, such as overtime.
Importantly, the Court of Appeal said that a worker or employee in Northern Ireland would have the ability to claim for holiday back-pay going back as far as the introduction of the Working Time Regulations in 1998. This obviously has huge financial ramifications for employers and leave to appeal to the Supreme Court has been sought by the PSNI.
Holiday pay cases were also brought in GB, where regulations were introduced which limit any back-pay claims issued from July 2015, to two years. But no such legislation was introduced in Northern Ireland.
Consequently a new minister may decide to introduce legislation to limit back-pay claims.
:: Gender Pay Gap Reporting and reforms to zero hours contracts - One of the last pieces of landmark legislation the previous Assembly passed was the Employment Act (Northern Ireland) 2016, though much deriving from it have not yet been brought into force.
For example, the Act deals with Gender Pay Gap Reporting, a practice that has been in force in GB since 2017. This obliges all organisations with 250 or more employees to publish and report on various matters, such as the differences between the hourly rates of pay between male and female employees, differences between average bonus paid to male and female employees and so on.
The Act also established enabling provisions on zero-hours contracts, which provide for regulations to be made to prevent abuses arising from the use of zero-hours contracts, such as a ban on exclusivity clauses, as is the case in GB.
These issues have only increased in prominence since the Act was passed so an incoming minister may decide to deal with them as a priority, bringing Northern Ireland more into line with the rest of the UK.
:: Apprenticeship Levy - Since 2017 an apprenticeship levy of 0.5 per cent of wage bills above £3 million has applied to all employers across the UK. Those monies are then paid into a fund. But while other parts of the UK have been able to access that fund, this is not the case in Northern Ireland, due to the absence of a distribution mechanism
The scenario where they have been levied for monies, but unable to access the funds to enable training and skills, has been a frustration for many local employers, so you could expect this to be high on the agenda also.
Of course, departmental capacity in the context of Brexit will be a challenge for any incoming minister, but there is no doubt pressure has been building on these issues in the business lobby, and they will be seeking movement early in any new mandate.
:: Rachel Richardson (Rachel.Richardson@tughans.com) is a director in the employment team at Tughans, and is qualified in both England & Wales, and Northern Ireland jurisdictions