Beyond borders: Updated Comparative Table of employment law developments across Great Britain, Northern Ireland and the Republic of Ireland

Blink and you’ll miss it. That’s certainly the case with employment law developments across the UK and Ireland and the first half of 2023 has been no exception! Fear not, however, as we’ve updated our Comparative Table again, in conjunction with Legal Island, to reflect recent developments across Great Britain (GB), Northern Ireland (NI) and the Republic of Ireland (ROI), drawing on the up-to-date articles we publish at Lewis Silkin.

For ease of comparison, the Comparative Table is split by subject area, with an index at the front. It also includes links to relevant legislation and other documents to help you understand the differences. There hasn’t been much legislative change in NI as the NI Assembly hasn’t been restored following the elections in May 2022.

We’ll certainly continue to see interesting developments as we head through the rest of 2023. Looking ahead to 2024, given the recent GB local election results, a Labour party general election victory is possible. To keep you ahead of the curve, we’ve written about some of the party’s proposed reforms to workplace rights, which include some potentially significant changes to unfair dismissal protection.

Taking a bird’s eye view over the 2023 changes and forthcoming developments, some key themes and trends emerging for employers and some notable developments are set out below.

Brexit Freedoms Bill

The proposed changes flowing from the government’s Retained EU Law Bill (also known as the Brexit Freedoms Bill) are big news in GB, including the scrapping of the controversial sunset clause, which could have seen thousands of EU-based laws disappear at the end of 2023. We wrote about this significant repositioning here. Instead, the sunset clause will be replaced with a list of regulations to be revoked. In addition, some reforms to the Working Time Regulations and TUPE consultation requirements have been announced, which are now subject to consultation. One point attracting significant interest is the proposal that rolled up holiday pay will be allowed for all workers, including those with regular hours. This appears to take reforms to holiday pay further than was proposed in the holiday pay consultation earlier this year which we wrote about here.

Diversity, equity and inclusion

Diversity, equity and inclusion (DEI) remains high on the agenda, with diversity monitoring and positive action being some key topics for many employers.

• Pay transparency: Hot off the press is the news that the EU Pay Transparency Directive has been finalised and must be implemented by June 2026, making gender pay gap reporting compulsory for many employers across Europe. While ROI recently implemented gender pay reporting, the regime will likely need to change in light of the directive. Additionally, once the directive is adopted, employers will need to publish pay ranges in job vacancies which is not common practice, although, in ROI, two private member bills are making their way through the legislative process dealing with advertising remuneration. GB’s gender pay gap reporting regulations are being reviewed, with the government telling us that its response would be published in due course. In NI, the existing legislative provisions relating to gender pay gap reporting have not yet been brought into force (and it’s unlikely that there will be any progress until the NI Assembly is restored).

• Harassment: In GB a bill providing for protection from third party harassment and imposing a duty on employers to prevent sexual harassment is making progress through Parliament, although a wave of amendments from Tory peers may see this to run out of time and therefore fail. In GB and ROI steps are being taken to restrict the use of non-disclosure agreements as they relate to incidents of workplace sexual harassment and discrimination. The upshot could be a step change in how employers are required to manage the risks of harassment in a post #Metoo world, but much turns on the detail.
• Monitoring: In April 2023, the government issued new guidance for voluntary reporting on ethnicity pay gaps in GB – with the option of internal or external reports. The approach largely mirrors the GB gender pay gap regime. To help employers move further and faster to advance their DEI initiatives, we also recently compared diversity monitoring in GB and NI, highlighting some important distinctions in NI.

Family rights:

For many employers, family leave rights can play a pivotal role in attracting and retaining talent, enhancing productivity and promoting gender equality.

• Carers and working parents: By 2 August 2022, EU member states should have implemented the Work-life Balance Directive, which includes new baseline rights for carers and working parents. ROI introduced legislation doing so, albeit late in April 2023, which includes carer’s leave and domestic violence leave, although the new rights are not yet in force as commencement orders are awaited (but expected soon). GB doesn’t need to implement the directive but has already promised to match the new rights for carers, allowing working carers to take up to 5 days’ carers leave each year to help them carry out their caring responsibilities, although this will be unpaid. In GB, proposals for 12 weeks’ neonatal leave have also been introduced.
• Parental bereavement: NI’s parental bereavement provisions are to be extended to include working parents who suffer the loss of a child through miscarriage by 2026. In ROI paid leave (maternity and paternity) upon stillbirth or miscarriage is only available after the 24th week of pregnancy. However, a bill proposes to make provision for paid leave even if miscarriage or stillbirth occurred before the 24th week. It also provides for paid leave for the purposes of availing of reproductive healthcare such as IVF. This bill is currently in the Seanad Third Stage and may be enacted this year.

New ways of working – and working less?

The Covid-19 pandemic accelerated changes in working practices including an increase in alternative working models and policies that focus on employee wellbeing and flexibility.

• Flexible and remote working: In GB, the existing right to request flexible working is set to change in several ways, including it potentially becoming a day-one right. In ROI, following the implementation of the Work-life Balance Directive, parents and carers will be able to make flexible working requests and employers should also prepare for employees (not limited to those with parental or caring responsibilities) making remote working requests, although commencement orders introducing these rights are awaited.
• Working less? Our colleague and Employment Partner, James Davies, predicted working less as one of eight future of work predictions in his 2021 report on the ‘Eight drivers of change’ . One year on, his most recent report Eight Drivers of Change: 2022 and beyond revisited this, concluding that although the drivers behind a reduction in working hours remain, the cost-of-living crisis faced by many will push some to work longer hours to make ends meet. Even so, steps towards a potential four-day working week are gaining momentum across the jurisdictions, and our most recent Future of Work Hub podcast explores key learnings from the recent UK four-day week trial. This follows the Code of Practice on the Right to Disconnect that was introduced in ROI in April 2021, confirming employees’ rights not to habitually work outside their normal working hours, and to “switch off” from work.
• Future of the office: As employers recognise that to attract and retain the best people they have little alternative but to embrace home and hybrid working, our Future of Work Hub continues to explore the future of the office through our insights and podcast series.

Reshaping your workforce

The lasting effects of the Covid-19 pandemic, the impact of the war in Ukraine, the national cost-of-living crisis and the war for talent are currently major factors driving the need for organisations to change and adapt.

• Redundancies: Redundancies, including collective redundances, have become more frequent across the UK and ROI and cases are beginning to come through the court systems. In GB, the Employment Appeal Tribunal recently held that a pool of one will only be fair in appropriate circumstances and should generally not be considered without consultation where there is more than one employee in the same role. In ROI, a test case relating to redundancy could have implications for around 750 former Debenhams’ workers. In ROI, the government plans to draft legislation to enhance the protection of employees in collective redundancies following insolvency. In GB, redundancy protection that prioritises those on maternity leave looks to be extended by the Protection from Redundancy (Pregnancy and Family Leave) Bill. This would extend protection beyond maternity leave to include pregnancy and a period after maternity leave and would also catch those adopting a child or taking shared parental leave.

Terms of employment

In recent months we’ve seen some important developments relating to setting and changing terms of employment:

• Transparent and predictable terms: EU member states had until 1 August 2022 to implement the Transparent and Predictable Working Conditions Directive. ROI introduced regulations on 16 December 2022 doing so, which include a six-month limit on the maximum duration of probationary periods. In GB there are proposals to give workers and agency workers the right to request more predictable terms and conditions of work after a qualifying period of service (likely to be 26 weeks).
• Changing terms: In GB, the government published a new draft Code of Practice which warns that “fire and rehire” should only be used to change employees’ terms and conditions as “a last resort” and urges employers to first engage in thorough and open information and consultation processes. The draft was open for consultation until April 2023. Last summer, we wrote about the GB Court of Appeal overturning an injunction restraining Tesco’s fire and rehire exercise.
• Non-compete clauses: In May 2023 the government announced its intention to introduce GB legislation to limit the length of non-compete clauses to 3 months. This would not affect paid-for notice, garden leave or non-solicitation clauses.

Environmental, social and governance (ESG) issues

ESG issues remain a key focus for many organisations across multiple sectors. Employers looking to stay on top of the ESG agenda should factor in several employment law changes including:

• Whistleblowing: EU member states had until 17 December 2021 to implement the EU Whistleblowing Directive. ROI recently passed legislation to transpose it into Irish law. While it already had existing whistleblower protection, the new law, which is effective from 1 January 2023, expands the protection of the protected disclosures regime. The EU Whistleblowing Directive does not apply to the UK but looks set to influence best practice.
• Modern Slavery Act: We’re expecting reforms in the UK strengthening the Modern Slavery Act. The reforms will implement the plans announced in September 2020. When these are introduced, companies in scope of the current reporting requirements may need to pay even closer attention to their anti-slavery statements as a result. This comes at a time of growing interest in supply chain governance as part of the ESG agenda.

Ways in which we support employers with their ESG agendas are outlined here.

The Comparative Table does not contain a full analysis of the legislative and case law differences between the jurisdictions. We intend to update it at intervals and the authors would appreciate any suggestions for omissions or additions in future.
The Comparative Table is for guidance only. We recommend that professional advice is obtained before relying on information supplied anywhere within the table.

To download the Comparative Table as a PDF, click here.