Last year's 'Good Jobs' Employment Rights Bill consultation set out significant proposals, potentially paving the way for the biggest overhaul of NI employment law in over a decade. We wrote about this here. The new Minister for the Economy, Dr Caiomhe Archibald, has now released the Department's summary of responses to the consultation alongside its official response paper; 'The Way Forward'. This paper highlights the proposals it now seeks to have agreed by the Executive and brought into law in Northern Ireland.
We look at the key changes announced, and how these will work alongside employment developments in Great Britain (GB).
The changes have been proposed across four 'Themes'.
Theme A: Terms of Employment
Ending exploitative zero hours contracts
This was a headline proposal under the consultation with a potential range of measures for reform. In its response document, the Department acknowledges the benefit and flexibility of zero hours contract for certain groups of workers including students, working carers etc, but intends making a number of 'proportionate' changes to end exploitative practices including:
- The option to move to a 'banded hours' contract for workers consistently working zero/low hours, which more accurately reflects regular working patterns of such workers.
- A qualifying period to apply for banded hours contracts (likely 26 weeks but to be determined) and employers can decline a request only in limited circumstances (such details also to be determined).
- A requirement for employers to inform zero and low hours workers of the right to banded hours in written employment particulars when employment commences.
- The right for zero and low hours workers to 'reasonable notice of shift patterns' – more detail to come following stakeholder engagement.
- The right to compensation where employers cancel or curtail shifts at short notice – more detail to follow.
- Banning exclusivity clauses on contracts below the Lower Earnings Limit (currently £125 per week)
- Powers to extend the right to banded hours contracts to other contracts (other than zero or low hours) in the future.
A lot of the detail on how these new rights will work still needs to be thrashed out through stakeholder engagement, but the Department is taking something of a hybrid approach to tackling issue.
Banded hours contracts have been in place in the Republic of Ireland (ROI) for some time and were also proposed in Northern Ireland via a draft bill in 2022, which was never passed.
The Department has chosen not to take the GB approach to 'guaranteed hours' in its recent Employment Rights Bill, but the new right to 'reasonable notice of shifts', and compensation for late cancellation, is an area of convergence with GB.
The ban on exclusivity clauses will come as no surprise, bringing Northern Ireland in line with the rest of the UK and ROI in relation to this.
Fire and rehire
The Department intends to tackle the practice of 'firing and rehiring' workers on less favourable terms through legislation making it automatically unfair to dismiss an employee to alter the terms of their contract of employment without agreement. There will be an exception for employers that can show they were acting in a response to immediate financial difficulty and the only alternative is the loss of jobs.
This largely mirrors the provisions in GB's Employment Rights Bill which only permits fire/rehire as part of a restructuring for a business to remain viable and to preserve its workforce when there is genuinely no alternative.
Written statement of particulars
Employers will be required to provide a written statement of employment to employees and workers on or before the first day of employment, a change from the current requirement of within two months from the first day of employment, and this will also be extended to workers. The information required in the statement will be expanded to include pay, working hours and paid leave and information on a worker's right to join a trade union. Existing employees and workers will also be able to request statements.
This will bring NI in line with GB.
Agency workers
There will be better protection for agency workers, who will be entitled to clearer information via a Key Information Document about the terns of their work assignments (including the name of the company, rate pay and schedules, holiday) and a loophole known as the 'Swedish derogation', permitting agency workers to receive less pay than permanent counterparts, will be abolished.
Theme B: Pay and Benefits
Tips
Legislation will be introduced to ensure tips are passed on to
workers in full (save deductions required by law) and employers
will be required to keep records of payments for service received
and distributed, which can also be accessed by workers. There will
also be a Code of Practice to set out principles of 'fairness
and transparency' in relation to this new practice.
Both GB and ROI have already enacted legislation requiring
employers to ensure that tips they receive are passed on to
workers.
Payslips
All workers will be given the right to an itemised pay statement
which must contain information details of time worked, if paid
hourly.
This already applies in GB.
Holiday pay
The holiday pay reference period will be changed from 12 to 52
weeks, helping to remove seasonal fluctuations for employers of
irregular hour workers by averaging pay across a longer period.
This is in line with the approach in GB (and with the Supreme
Court's findings in the recent Agnew case) making it easier for employers
with workers in GB and NI to streamline payroll operations.
Disappointingly for employers, despite many concerns being raised
by respondents to the consultation, there have been no further
proposals in relation to a two year back stop for holiday pay, as
exists in GB, meaning holiday pay claims in NI can still
potentially date back to the beginning of employment, or 1998 (when
Working Time Regulations were introduced) whichever is
earlier.
Working time record keeping requirements
Record keeping requirements as they currently stand in NI under the
Working Time Regulations will not increase, but the Department will
work with the Labour Relations Agency (LRA) to produce guidance on
these requirements.
In GB, legislation applies confirming that employers do not need to
keep detailed records of workers' daily working hours if they
can demonstrate adequate compliance with the Working Time
Regulations through other means. This does not appear to be taken
forward by the Department.
Right to Disconnect
The Department will introduce a statutory Code of Practice
governing the right to disconnect, which it considers as striking a
balancing between the need to protect employees in an increasingly
digital and 'on call' world, and promoting economic
development. This obviously falls short of stricter legislative
regulation around issues relating to excessive working hours or
outside of core hours, but would be persuasive in any Tribunal
claims in relation to such issues.
A Code of Practice on the right to disconnect is currently in
operation in ROI and is a growing trend globally. Despite
suggestions of a 'right to switch off' Code of Practice,
this was left out of GB's recent Employment Rights Bill and
seems unlikely to be progressed further at this point.
Theme C- Voice and Representation
Workplace access
Legislation will increase trade union access through a legal right
to require access to workplaces, including digital access, but this
access will not be automatic and must be at reasonable times and
comply with health and safety, and security provisions.
Access for trade unions in GB is also expanding under the
Employment Rights Bill – see further here.
Recognition
The threshold of the number of employees before a union claim for
recognition by an employer can be made for trade unions will be
reduced from 21 to 10 employees to ensure a greater number of
workers in smaller businesses in NI will have the opportunity to
access a trade union.
Recognition for trade unions in GB is also changing under the
Employment Rights Bill – see further here.
Sectoral Bargaining
There are no solid plans to implement sectoral bargaining at this
stage, rather, the Department is planning to engage further with
key stakeholders and the LRA to consider how a collective
bargaining framework could operate more widely in NI, with the aim
of working towards the target of a collective bargaining coverage
rate of 80% as stipulated under the EU Adequate Minimum Wage
Directive (it is currently 20% in the private sector).
Industrial action: notice
In recognition of the potential disruption to businesses, the
Department will not decrease the notice required to take industrial
action from seven to five days as originally proposed.
The notice period in GB will reduce to 10 days from 14 under the
Employment Rights Bill.
E-Balloting
Legislation will introduce the possibility of e-balloting instead
of or as well as postal balloting, with detailed scrutiny and
security provisions to be included.
Protections for trade union representatives and employees
taking part in industrial action
No major changes are being made to protections for trade union
representatives, but a Code of Practice will be introduced setting
out a minimum set of expected behaviours as to how parties should
engage with each other. This might include behaviours by union
officials, and a possible mechanism for complaint about union
officials to unions, which was a subject raised in the consultation
by employers.
Protection will be extended for employees taking part in industrial
action by abolishing the 12-week time limit on protection against
dismissal for such employees.
Protections for trade union reps and members are also being
enhanced in GB under the Employment Rights Bill – see further
here.
Information and Consultation
Under the Information and Consultation of Employees Regulations
2005, the threshold for employees in larger businesses to request
information will be reduced to 2% of employees and at least 10
people (a change from 10% and 15 people), with provisions to
include employees in smaller offices of larger organisations. This
may lead to an increase in the use of the ICE Regulations by
unions.
Theme D – Work-Life Balance
This section aims to enhance 'family friendly' rights
and it appears, perhaps unsurprisingly, the majority of proposals
under the consultation will be adopted. The changes being made
largely reflect amendments to rights in GB before the Labour
Government came into force and prior to further amendments under
the Employment Rights Bill.
Flexible working
Flexible working will become more accessible through the following
changes:
- Flexible working requests can be made from the first day of employment (removing the 26-week qualifying period)
- Two requests (up from one) can be made within a 12-month period, with the second request permitted after the first is resolved or withdrawn.
- Employers must act reasonably when refusing such requests, although the statutory grounds for refusal remain unchanged.
- Employees will no longer be required to state the potential impact of their request.
Similar rights were introduced in GB in 2024 and we have already
seen employers with employees in both jurisdictions (GB and NI)
adopt the changes implemented in GB for their NI employees as a
matter of best practice. These developments in NI will further
streamline these processes.
It is worth noting that flexible working rights will be
strengthened further in GB through the Employment Rights Bill which
will require any refusal of a flexible working request to be
reasonable, but the eight business reasons will remain the
same.
Carer's Leave
A new carer's leave will be introduced on the same terms as is
currently operating in GB, namely:
- An employee with caring responsibilities will be entitled to one week of unpaid carer's leave every 12 months to care for a family member or dependant with a long-term care need
- Employees must provide notice to their employer unless in an emergency
- The notice period will be the earlier of twice the number of days of leave requested, or three days in advance of leave
- Employees taking carer's leave will have similar employment protections to other types of statutory leave (maternity, shared parental etc)
This is currently penned as unpaid leave, which will be
disappointing to employees with caring responsibilities. However,
the Department has made clear that this is ultimately intended as a
paid right although this can only happen if the Executive can fund
this itself, or if GB converts its own carer's leave into a
paid right and funding flows from there.
The British government has confirmed it will conduct a full review
of the parental leave system as well as reviewing the benefits of
introducing paid carers' leave. The Department states its
intention to lobby Westminster to introduce this as a statutory
entitlement and independent research on the potential costs of paid
leave has been commissioned.
Neonatal care leave and pay
Eligible working parents will be given a new statutory right to
time off when a newborn requires neonatal care, the main provisions
will be:
- The right will apply from the first day of employment
- Available to parents of babies admitted to neonatal care in the first 28 days following birth, and who spend at least 7 continuous days in care
- A week of neonatal care leave (and pay if applicable) for each week the child is in care up to a maximum of 12 weeks
- To qualify for neonatal care pay, employees must be employed for 26 weeks and earn at least the Lower Earnings Limit (£125 per week at present)
- Pay will be at the statutory rate (currently £187.18) of 90% of average earnings (whichever is lower)
- Reasonable notice will need to be given to employers and some evidence of entitlement – guidance on this will follow.
Similar neonatal leave and pay rights came into force in GB last month, and employers are still getting to grips with how this new right operates in practice. We have further information about this here.
Protection for redundancy: pregnant employees and family leave returners
Protection from redundancy will be enhanced for:
- pregnant employees (from the point the employer is informed of the pregnancy); and
- employees returning from maternity/adoption leave (and at least six weeks' shared parental leave) with protection lasting for 18 months from the date of birth/stillbirth/adoption.
This will significantly increase the number of employees with 'protected status' and with priority entitlement to suitable alternative employment in a redundancy scenario, but would align rights of employees in NI and GB, which would also simplify redundancy processes for employers across both jurisdictions.
It is worth noting that the Employment Rights Bill in GB also gives the government powers to extend these protections to other dismissals and to other forms of family leave. The Department also now states its intention to incorporate such enhanced rights to ensure parity with GB in this area. The Department will engage further with stakeholders before determining the specific level of protection that should available here, and any changes will be subject to additional impact assessments.
Paternity leave
Paternity leave will be extended so that new fathers can take leave:
- from the first day of employment (removing 26-week qualification period)
- as two separate blocks of one week, or a single block of two weeks
- at any time within the first 52 weeks of birth/adoption (rather than the current 56 days).
Notice requirements will also be reduced to 28 days for each period of leave (down from 15 weeks) and the Department will also legislate to make it possible to increase the duration of paternity leave in the future.
In GB, the Employment Rights Bill will also remove the 26-week qualification period, and employees will be able to take paternity leave and pay in addition to shared parental leave and pay.
What isn't going ahead
Some of the key proposals under the Good Jobs consultation don't appear to be taken forward in a substantive way at this point.
Employment status
The thorny issue of 'employment status' has, for now, been put on the back burner, in recognition of the complexities associated with putting in place a simpler framework than the current three tier system of worker, employee and self-employed. The interaction with tax law (which is not devolved) means greater consideration of the issue needs to take place, and the Department states its intention to develop guidance and to work with the British Government to provide a joined-up approach. This issue was also not tackled in GB's Employment Rights Bill, and consultation on this is expected at some point later this year, at the earliest.
TUPE changes
The Good Jobs consultation sought views as to whether 2014 and 2023 GB reforms to TUPE, in relation to information and consultation requirements for micro businesses, should take effect in NI, along with input on other potential changes to TUPE. The Department states it will not be making any changes to TUPE at this time given the complexities of this area of law, and given further potential changes in GB.
What's next?
Whilst it is good to know what changes we can expect, nothing is happening immediately. The Minster has written to the Executive to seek endorsement for her proposals which will then need to be put on the Executive agenda and needs cross party support.
The Department estimates having a draft bill by January 2026 with the aim of being passed into law before the Assembly mandate ends in 2027. There are, of course, a smaller package of changes which will be subject to secondary legislation (e.g. changes to payslips) and some enhanced guidance or Codes of Practice which may be introduced more quickly.
Not all will be coming into force immediately or concurrently, and there will be a phased transition period, with longer periods, and more guidance for employers and employees before implementation of some of the major changes.
The 'Good Jobs' Employment Rights Bill consultation response is available here.
Our NI Employment Law Reform Impact Hub is available here and our Dashboard with a full analysis of all the proposals is available here.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
