Do you need to stay up to date with current and proposed employment law developments across Great Britain, Northern Ireland and the Republic of Ireland? If so, our updated Comparative Table, prepared in conjunction with Legal Island, will be a handy reference guide.
The employment law landscape has changed considerably over the last four years and is continuing to change rapidly. Many developments over the last two years have stemmed from the Covid-19 pandemic, which has shone a light on employee wellbeing, flexibility, sustainability and shifting values.
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 both taken place over the last four years and are proposed in Great Britain (GB), Northern Ireland (NI) and the Republic of Ireland (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.
There has been less legislative change in NI than in GB and 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.
Taking a bird's eye view over the changes and forthcoming developments, some key themes and trends emerging for employers are set out below.
New ways of working – and working less?
The Covid-19 pandemic has 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 long-awaited Employment Bill was notably absent from May's Queen's speech. Assuming this is simply a delay, when it does come before Parliament it is expected to include a new right to request flexible working from day one. While the proposed legal reforms are modest, they form the backdrop to discussions about "new normal" working arrangements. In ROI, following the Work-life Balance Directive, proposals are in place to allow parents and carers to make flexible working requests with the legislation to be established by the Autumn. Employers in ROI should also prepare for remote working requests following draft remote working legislation, which is expected to become law soon.
- Working less? Our colleague and Employment Partner, James Davies, predicts working less as being one of eight future of work predictions (in his Eight Drivers of Change report). He says "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". Certainly, 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.
Environmental, social and governance (ESG) issues
ESG issues are emerging as a key focus for organisations across multiple sectors. Employers looking to stay on top of the ESG agenda in 2022 should factor in several potential employment law changes including:
- Whistleblowing: ROI has introduced legislation to transpose the EU Whistleblowing Directive into Irish domestic law. ROI already has existing whistleblower protection but the new law will expand the protection of the protected disclosures regime. The EU Whistleblowing Directive does not apply to the UK but looks set to influence best practice. Its key feature is the requirement to provide feedback to whistleblowers within certain specified timescales.
- 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, which could be this year, 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.
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 significant developments in 2022 are likely.
- Pay transparency: In GB, detailed rules governing gender pay gap reporting are overdue for a review, as the government was required to do this by April 2022. 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 promised 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. Provision could be made in the Employment Bill (assuming it is put before Parliament) for these changes. 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. 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.
- Carers and working parents: By August 2022, EU member states need to 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 proposals to implement the Directive are in place. The UK doesn't need to implement the directive but GB 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 we expect the Employment Bill (assuming it is put before Parliament) to pave the way for its introduction.
- Parental bereavement: In NI, legislation has recently been passed giving employees 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, a bill is in place making 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 in 2022!
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.