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Employment Act 2016 Northern Ireland

By Ian Holloway, head of legislation and compliance at Cintra HR & Payroll Services

I know I keep harping on about it but, yes, what happens in Northern Ireland does matter to UK professionals. It is still part of the UK, after all, and we need to be respectful of the fact that what happens in Great Britain may not always apply in Northern Ireland.

This is especially true of employment and industrial relations issues which are devolved completely – for example, there is no such thing as the Employment Rights Act 1996, the Working Time Regulations 1998 do not apply there, and nor does ACAS.

So, UK professionals need to be aware of the the Employment Act (Northern Ireland) 2016 that received royal assent on 22 April 2016. The Act focuses on three main themes:

1. Resolution of workplace disputes.
2. The efficiency of the employment tribunal system in Northern Ireland – the Industrial Tribunal (IT) and the Fair Employment Tribunal (FET).
3. Employment regulation.

It introduces the following and I would strongly recommend that employers who are impacted digest the highly readable explanatory notes to the act that have been prepared by the Department for Employment and Learning (DEL). DEL has the lead responsibility for employment law and relations in Northern Ireland:

Labour Relations Agency early conciliation

The act amends the Industrial Tribunals (Northern Ireland) Order 1996 and the Fair Employment and Treatment (Northern Ireland) Order 1998 and allows for the process of early conciliation with the Labour Relations Agency (LRA) before a claim is lodged at the IT or FET. The process of early conciliation in Northern Ireland is, therefore, aligned with the process in Great Britain, where prospective claimants have had to go through ACAS before going through the tribunal process since 2014.

Protected disclosures

The Employment Rights (Northern Ireland) Order 1996 (ERO) is amended to say that a worker will only be provided with protection against unfair dismissal and detriment if a whistleblowing disclosure is made that is in the public interest (in their “reasonable” belief). There is no effective commencement date for this provision.

This mirrors the clause that already exists in the Employment Rights Act 1996 in Great Britain and was effective June 2013.

Zero-hours contracts

The 2016 Act amends ERO 1996 allows for future regulations by DEL “to prevent abuses associated with the use of zero-hours contracts”. We will have to wait for these regulations to see if the preventative measures are aligned to the ban on exclusivity clauses that applies in Great Britain.

Gender pay gap information

The 2016 act provides for gender pay gap reporting In Northern Ireland, just as the Equality Act 2010 provides for the same reporting in Great Britain. When the bill was progressing through its consideration stages, a major difference was that it would apply to employers with 50 or more employees rather than 250 in Great Britain; now it says that the threshold will be prescribed in future regulations. Further, it said that regulations would have to be made in 2016, though the act changes this and says that they must be introduced by 30 June 2017.

Even so, we know some of the details of the regulations that DEL must publish:

• descriptions of an employer;
• descriptions of an employee;
• how an employer must calculate the number of employees;
• a standardised method for calculating any differences in the pay of male and female employees;
• descriptions of the information to be reported;
• a requirement that the information includes statistics on workers within each pay band in relation to ethnicity and disability;
• the time when the information is to be published; and
• the form and manner in which it is to be published.

Importantly, I think we can take away that gender pay gap reporting will be different in Northern Ireland from how it will be in Great Britain, certainly in respect of the timing of publication.

Employment law payments and awards

The Employment Relations (Northern Ireland) Order 1999 sets annual awards in respect of things like unfair dismissal and a week’s pay for statutory redundancy pay purposes. In 2016, they were effective 14 February, whereas they are aligned with the start of the tax year in Great Britain. Further, they are different values. The 2016 act amends the effective date to 6 April each year and makes changes to the way the values are rounded when they are reviewed.

However, an addition to the 1999 order seems to allow DEL to lay amendments at any time they like – presumably, this is to allow amending regulations to be made to amend the 14 February 2016 awards and then align them to the start of the 2017-18 tax year by amending them again.

Qualifying period re dismissal

The original bill allowed an amendment to ERO increasing the redundancy qualifying period from one to two years – as it is in Great Britain. As a result of amendments at the consideration stage in the assembly, this has not been taken forward in the legislation that was enacted in April.

So, we have the enabling legislation in Northern Ireland – now it is a case of looking for the commencing regulations on each of the above.

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