Updated Comparative Table of employment law developments in Great Britain, Northern Ireland and the Republic of Ireland

The employment law landscape has changed considerably over the last four years and is continuing to change rapidly. Many developments have stemmed from the Covid-19 pandemic, which shone a light on employee wellbeing, flexibility, sustainability and shifting values.

There has been less legislative change in Northern Ireland (NI) than in Great Britain (GB) and the Republic of Ireland (ROI) for a number of reasons, including the lack of law-making institutions for three years and political parties failing to reach consensus on changes. This is likely to remain the case until the NI Assembly is restored following the elections in May 2022.

The Comparative Table, which we have prepared in conjunction with Legal Island, is intended to be a handy reference guide to the main employment law developments that have taken place over the last four years, or are planned to take place, in GB, NI and ROI. For ease of comparison, it 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.

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

A major change to employment legislation in GB and NI?

The Retained EU Law (Revocation and Reform) Bill (Brexit Freedoms Bill) was introduced in the House of Commons on 22 September 2022. The Brexit Freedoms Bill aims to dramatically increase the pace of repealing, restating or replacing EU laws which were retained by the UK when it exited the EU on 31 December 2020.

The UK is already free to remove retained EU law through the normal parliamentary process, but this can be quite slow. The Brexit Freedoms Bill confers extensive powers on the government to remove or replace EU law by means of regulations. This is a much faster process as it significantly curtails Parliament’s ability to scrutinise any proposals. This has been criticised as being “undemocratic.”

We commented in this article about the Brexit Freedoms Bill’s potential implications for employment law in Great Britain. In this article we consider the potential implications of the Brexit Freedoms Bill for employment laws in NI, especially in light of the commitments given to protect Good Friday Agreement rights and the EU Directives that underpin those rights.

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. Many businesses are making changes to the makeup of their workforce, how and where their employees work and how to reward them. Offering employees greater flexibility over where they work (both home and abroad) and the evolution of the ‘employment deal’ brings opportunities but it also creates risk. Our ‘Reshaping your workforce’ hub brings together our UK employment and immigration team’s knowledge and content and provides a practical look at the issues businesses may face when reshaping their workforce.

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: Despite mounting evidence of the growing importance to employees of a work-life balance, in GB we are still awaiting the long-promised Employment Bill - in May 2022, the Queen’s Speech didn’t mention it. However, a number of proposals are now being progressed via Private Members’ Bills, and we watch with interest as to whether this will bring about flexible working from day one. In ROI, following the Work-life Balance Directive, draft legislation is in place to allow parents and carers to make flexible working requests. Employers in ROI should also prepare for remote working requests. We previously commented on the draft remote working legislation. Amended legislation is to be incorporated into the Work Life Balance and Miscellaneous Provisions Bill before the end of 2022, which will likely draw on 20 recommendations set out in a report, which we covered in this article.

• Working less? Our colleague and Employment Partner, James Davies, predicted working less as one of eight future of work predictions in his Eight Drivers of Change report. He said “as a result of evolving values, growing awareness of the health implications of a long-hours culture and increased flexibility…average working hours will continue to decline. Many more people will look to work only part of the week and during hours that fit with their family or other commitments”. A year on, 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 with employers trialling the effectiveness of a four-day week for their organisations. 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.

Environmental, social and governance (ESG) issues

ESG issues have become 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: ROI has recently passed legislation to transpose the EU Whistleblowing Directive into Irish domestic law. ROI already had existing whistleblower protection but 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.

• Climate change: This summer’s record-breaking temperatures made plain the stark reality of climate change. As environmental impact is set to remain a priority for businesses, we considered (from a UK perspective) how the climate emergency could be factored into flexible working requests, and looked at the updated guidance from the Health and Safety Executive, warning employers to prepare for a warmer future.

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

Diversity and inclusion

Diversity, equity and inclusion remain high on the agenda, whether as part of the “S” in ESG initiatives or separately. Diversity monitoring and positive action are key topics for many employers right now and we’ve seen some significant developments in 2022.

• Pay transparency: In GB, detailed rules governing gender pay gap reporting were set to be reviewed in the first half of 2022 – while this has not happened, a review remains likely. 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 following the elections in May 2022. In ROI, from this year, employers (initially with 250 or more employees) will be required to publish the gender pay and bonus gap for the workforce as a whole, their views on what is causing any gap and their plans for closing it. Gaps must be calculated using 12 months’ data up to June 2022, and then published by December.

• Harassment: In GB, the government has intended to introduce a new proactive duty on employers to prevent sexual harassment in the workplace and to bring back laws making employers responsible if employees are harassed by customers or other third parties. It had previously been assumed that provision would be made in the Employment Bill (assuming it is put before Parliament) for these changes. However, a Private Member’s Bill, which covers third party harassment, and would impose a duty on employers to prevent sexual harassment, is now making progress through Parliament. The Equality and Human Rights Commission may start consulting on its new Code of Practice on Harassment, building on the major guidance it published shortly before the Covid-19 pandemic.

• Gender critical beliefs: Two long anticipated tribunal decisions were published in close succession in GB this summer. Both considered the extent to which gender critical beliefs can be expressed in the workplace, impacting on the challenging question of balancing conflicting rights and beliefs at work. We have written about both the Mackereth and the Forstater decisions but this is unlikely to be the final word on this issue.

• Non-disclosure agreements: 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.

Family rights:

• Carers and working parents: By August 2022, EU member states should have implemented the Work-life Balance Directive, which includes new baseline rights for carers and working parents. In ROI, carers already have rights, as outlined in the Comparative Table and draft legislation implementing the Directive is in place. The UK doesn’t need to implement the directive but has already promised to match the new rights for carers. Under the GB government’s proposals, working carers will be able to take up to 5 days’ carers leave each year to help them carry out their caring responsibilities, although this will be unpaid. The government published some detail on how this new right will operate in September 2021 and the Carer’s Leave Bill has now reached the committee stage of the legislative process.

• Parental bereavement: In NI, eligible employees are now entitled to two weeks’ leave and pay following the loss of a child under the age of 18 (the entitlement being effective from April 2022). This brings NI in line with the existing rights in GB. Following further consultation and agreement on subsequent regulations, the NI provisions are to be extended to include working parents who suffer the loss of a child through miscarriage. In ROI paid leave (maternity and paternity) upon stillbirth or miscarriage is only available after the 24th week of pregnancy. However, the Organisation of Working Time (Reproductive Health Related Leave) Bill makes 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. The Bill is currently in the Seanad Third Stage and may be enacted this year.

We’ll certainly continue to see interesting developments as we head towards 2023!

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 also for guidance only. We recommend that professional advice is obtained before relying on information supplied anywhere within the table.