There has been a growing divergence in employment law between Northern Ireland and Great Britain in recent years, compounded by the two-year hiatus of the Northern Ireland Assembly. After a decade without substantial employment law legislation, the ‘Good Jobs’ consultation was launched with the aim of enhancing and developing the employment law framework in Northern Ireland in July 2024, and in many ways looked to close the gap between the two jurisdictions. We set out the proposals of the Good Jobs consultation in detail here.

We also conducted our own survey on the key elements of the proposals, asking stakeholders to share their views to get a sense of how changes may impact Northern Irish businesses and employees.

Meanwhile, following the Labour party’s general election victory, the new government announced its own comprehensive reforms to employment law which could broaden the gap between the two jurisdictions further.

At a significant juncture in the development of employment law Northern Ireland, we consider our stakeholders’ views on some of the key ‘Good Jobs’ proposals also now covered by the new Employment Rights Bill and consider what may be next for employment legislation in Northern Ireland. 

Which ‘Good Jobs’ proposals are in the Employment Rights Bill?

Zero-hours contracts

A major element of the ‘Good Jobs’ proposals is the likely overhaul of zero -hours contracts through a range of possible measures. We explored this further here.

It is inevitable that zero-hours contracts will be regulated or limited in some way by the final Good Jobs Bill. 92% of our survey respondents were in favour of replacing them with an alternative which still provided flexibility, but an outright ban is not necessarily a practical solution. Many employers still need flexible tools to address fluctuating or seasonal work, and these contracts can be attractive to people seeking ad hoc work.

Banning ‘exploitative’ zero-hours contracts was proposed under Labour’s New Deal, but the Employment Rights Bill has instead opted for measures offering predictability and fair notice arrangements, with 1) a requirement to offer guaranteed hours to zero-hours or low guaranteed hours workers, and 2) a requirement to provide reasonable notice of shifts to zero hours workers, with payments owed to workers if there is a change in shift at short notice. 

It is currently unclear how these measures will work, and are currently subject to public consultation, but they also mirror some of the potential proposals under ‘Good Jobs’, and around one third of respondents in our survey were in favour of similar measures being introduced in Northern Ireland. Compensation for cancelling shifts was less favourable and 20% of voters backed this option. 

It remains to be seen whether the Department for the Economy will follow the path taken by Great Britain, it may also revisit a previous bill which favoured a ‘banded hours’ approach (contracts which would reflect the reality of the type of hours actually worked over a set period). This was also the approach taken by the Republic of Ireland in relation to this issue. 

This was not implemented in Northern Ireland, and the ‘Good Jobs’ consultation sought views on whether separate regulation of this area was necessary, either by way of legislation or similar Code of Practice.

The Employment Rights Bill has gone significantly further and would severely restrict the use of fire and rehire practices to change terms and conditions, with very limited exceptions for employers acting in response to financial difficulties. Issues relating to these changes are currently subject to public consultation.

The practice is more limited in Northern Ireland, and stakeholders in our survey were quite evenly split as to whether further regulation in any form was required. It is possible that the Department will opt for guidance by way of Code of Practice on this issue, rather than adopting a more restrictive legislative approach. 

The majority of stakeholders in our Good Jobs survey were against expanding union rights proposed in the consultation, with particular concern for smaller businesses who might otherwise lack resources and expertise to manage increased union activity. It is, however, possible that exemptions will be made for these organisations.

The Employment Rights Bill significantly strengthens the power of trades unions through substantially wider rights of access for unions for a range of activities and, simplification of the recognition process by lowering membership thresholds and removing certain support requirements. The Bill also requires employers to inform workers of their right to join a trade union, repeals restrictive legislation on strikes and paves the way for electronic balloting.

Sectoral bargaining has also been set in motion for Adult Social Care through Fair Pay Agreements in the new Bill, and ‘Good Jobs’ also seeks views on adopting this practice in Northern Ireland. This has also been in place for some time in the Republic of Ireland, but not without difficulties. 74% of our stakeholders felt this would not work in their sectors, so if this is taken forward, careful consideration will be needed of implications for employers and employees across various sectors.

One proposal of ‘Good Jobs’ which goes significantly further than Great Britain is to reduce the notice period before strike action can commence from 7 days to 5 days, a substantially shorter period than the 14 days currently required in Britain, although this period is also subject to public consultation. 91% of survey respondents were against this proposal, and consideration would need to be given to the significant disruption to service users in areas such as schools hospital and public transport such a change would create.

The Employment Rights Bill goes further again, whereby flexible working requests could only be refused if is ‘reasonable’ and employers must explain why this is so, likely making it much easier to challenge outcomes

‘Good Jobs’ proposes adopting many of changes Great Britain has already put in place, but with some moderations, for example, maintaining a 6-week (rather than 2 month) timescale for consideration. 

Flexible working is becoming an intrinsic part of workplace conversation, and 72% of survey respondents agreed with the Department’s proposals on this issue. As the consultation makes clear these changes are intended to come into force, we can likely expect these to form part of the future Good Jobs legislation.

However, Northern Ireland is still very much playing ‘catch up’ and the changes already in effect in Britain, now, largely, form the basis of family rights proposals under the Good Jobs consultation.

‘Good Jobs’ proposals include the introduction of new neonatal leave and carer’s leave (potentially paid), enhanced paternity leave, (all of which would apply from the first day of employment), as well as enhanced protection from redundancy for pregnant employees and family leave returners for 6 months after returning to work. We explored these proposals further here.
Respondents of our survey were largely in favour of expanding these work life balance/ family friendly rights, in particular, 98% were in favour of carer’s leave although only 54% were in favour of this being a paid leave, which is not the position in Great Britain. This would be a difficult and potentially expensive entitlement to implement in Northern Ireland due to technical issues with HMRC, for example, but it is possible the British government may ultimately also make this change as part of its holistic review.

Under the new Employment Rights Bill, parental leave and paternity leave are to become day one rights and the Bill contains a power for the government to introduce stronger protections against dismissal for pregnant employees and family returners, but the details are left for future regulations.  

The trend in relation to family rights is clearly towards expansion and progression. Many employers already offer enhanced family leave packages, often above what is being proposed in the Good Jobs consultation, and it seems inevitable that most, if not all of these proposals will form part of the final Good Jobs Bill. 

We can likely expect a similar approach from the Department in relation to these issues. Respondents to our survey were split on the issue of whether further regulation was needed over a formal ‘right to disconnect’, there is undoubtedly a significant benefit to maintaining a flexible approach to this issue. It’s worth noting that a similar Code of Practice has been in place since 2021 in the Republic of Ireland.

The law regarding employment status is complex, and whilst stakeholders were overwhelmingly in favour of simplifying this, the Department made clear in the consultation that it is seeking evidence and views to inform policy at this stage, and it is possible we may wait and see how the British government ultimately approaches this issue.

What’s not in Good Jobs and what’s the position in Northern Ireland?

Day one unfair dismissal rights and statutory sick pay

Removing any qualification period for unfair dismissal protection has been the most significant feature of the Labour government’s ‘New Deal’ but was notably omitted from the ‘Good Jobs’ proposals. 

Whilst the Employment Rights Bill has tempered this right with plans to introduce a ‘light touch’ procedure in an ‘initial period’ (likely 9 months), which may ultimately lead back to a statutory dismissal procedure which has remained the law in Northern Ireland, this is still a significant expansion to employee rights.

Employees in Northern Ireland still acquire protection from unfair dismissal after one year of employment (currently two years in Britain), so a move towards ‘day one’ rights here would be a small step toward expanding unfair dismissal protection. Subject to regulations as to how this new right will work, it possible that this could ultimately find its way into the ‘Good Jobs’ Bill. 

The Employment Rights Bill also scraps the waiting period so that SSP will become payable from day one of sickness and removes the lower earnings limit. This change is likely to happen relatively fast in Great Britain, and whilst not mentioned in the consultation, may also ultimately be adopted by the ‘Good Jobs’ Bill.

Pay gap reporting

Issues such as pay gap reporting in Northern Ireland are governed by the Department for the Communities, and therefore did not form part of the Department for the Economy’s ‘Good Jobs’ proposals.

The Employment Rights Bill somewhat broadens existing pay reporting requirements with an obligation to publish action plans and identify providers of contract workers. Whilst ethnicity and disability pay gap reporting has not been included in the Bill, the Next Steps document states it will consult on separate legislation in relation to this.

Northern Ireland has no pay gap reporting requirements at all, and now falls significantly behind the rest of UK and Republic of Ireland. The Employment Act (Northern Ireland) 2016 provides for regulations to require employers to publish information on the gender pay gap and also some information on employees in relevant bands relating to ethnicity and disability, but regulations have not yet been produced and further detail about how this will apply in Northern Ireland is needed. 

The Employment Rights Bill has now closed this gap and included a liability on an employer for third party harassment unless it took all reasonable practicable steps to prevent this.

It is worth noting that this has been in place in Northern Ireland for some time. Employers here already have a legal duty to prevent third-party sexual harassment, for example, by a customer or client. Specifically, an employer is liable if it knows that the employee has been sexually harassed in the course of their employment on at least two other occasions by a third party, and not taken reasonable steps to prevent it from happening to the employee again.

Employment claims in relation to this right have been relatively rare, perhaps because employees aren’t aware of its existence. It will be interesting to see what difference this enhanced right makes in Great Britain going forward.

What next?

The ‘Good Jobs’ public consultation closed on 30 September 2024, and the Department for the Economy now has the job of reviewing and summarising responses to its proposals and drafting legislation. At that point, the Bill will make its way through the Assembly and the legislative process which may result in a number of amendments. The Bill requires cross party support, which is where previous bills have often fallen short.

As to what will be in the Bill and how quickly it can be turned around is less certain. The Minister for the Economy has suggested he intends to have draft legislation by March 2025. The Executive is now almost 9 months into its 3 year term, and it seems likely that some of the more fully formed proposals, e.g. in relation family rights, would be subject to legislative changes within that period. Other areas which seek opinion to inform policy, such as in relation the right to disconnect, employment status and some trade union issues, may take a little longer.

The impact of the Employment Rights Bill is also unclear. In many respects Northern Ireland is still playing catch up with employment law changes in Great Britian which took place prior to the Labour Government taking power, but some ‘Good Jobs’ proposals also set an intention for a different course to address the specific needs of employees and businesses in Northern Ireland.

In broader terms, the issue of gender pay reporting and development of equality laws remain stagnant in Northern Ireland, which also require further consultation and legislative reform by the relevant departments.