Access factsheets providing information on employment law issues for Ireland
It’s very important that HR practitioners with responsibility for employees in Northern Ireland are aware of the employment law differences from the rest of the UK. While in practical terms most employees’ general employment rights will be the same in Northern Ireland as in Great Britain, the particular legal references may be different due to Northern Ireland specific legislation. There have also been signs of a distinct divergence between the employment laws in Northern Ireland and those in Great Britain which seems set to continue.
This factsheet for CIPD members provides an introductory overview of the key differences and important areas of employment law. It covers discrimination and promotion of equality, dispute resolution, tribunals and compromise, TUPE, redundancy, working time and holidays, and data protection, as well as other areas. It provides a comparison of the principal Northern Ireland and Great Britain employment law, and lists codes of practice that apply in Northern Ireland.
Background to NI and GB employment law differences
For many years, Government policy in Northern Ireland was that employment law should be broadly in line with the law in Great Britain and the only main distinction was discrimination on grounds of religious belief and political opinion. Most of the legislation passed in Great Britain was enacted in Northern Ireland, but at times there could be a delay, sometimes stretching to years before the implementation of legislation into Northern Ireland. For example, the Race Relations (Northern Ireland) Order was passed in 1997, whereas the Race Relations Act 1976 was passed in Great Britain in 1976. Some legislation such as the Data Protection Act 1998 applies to Northern Ireland as well as the rest of the UK, while other legislation such as the Disability Discrimination Act 1995 has been repealed in the UK but still remains in force in Northern Ireland.
In practical terms most employees’ entitlements and obligations will be the same in Northern Ireland as in Great Britain. However, although the general employment rights will often be the same, the particular legal references may be different due to Northern Ireland specific legislation. For example, a reference in a contract of employment should be to the Employment Rights (Northern Ireland) Order 1996 and not to the Employment Rights Act 1996. Particular care needs to be taken with compromise agreements because a failure to make reference to the appropriate legislation may affect the validity of the agreement. More information on compromise agreements can be found later in this factsheet.
Following devolution in 1998, employment and discrimination law was a devolved power to the Northern Ireland Assembly, although confusingly, as highlighted above, some legislation such as the Data Protection Act 1998 and part of the TUPE Regulations apply to Northern Ireland as well as the rest of the UK. Within Northern Ireland responsibility in this area is split, with the Department for the Economy being responsible for general employment rights, covering such issues as unfair dismissal, working time etc while equality/discrimination law is the responsibility of the Executive Office (which used to be the Office of the First Minister and Deputy First Minister) and the tribunals system comes under the responsibility of the Department of Justice for Northern Ireland.
There have been signs of a distinct divergence between the employment laws in Northern Ireland and those in Great Britain which is set to continue. So it is very important that HR practitioners with responsibility for employees in Northern Ireland are aware of the differences, in order to comply with the law.
At the time of writing there continues to be a period whereby the Local Assembly is inactive and there are a number of employment initiatives in abeyance. The main outstanding piece of legislation is the Employment Act (Northern Ireland) 2016, which many practitioners felt would bring Northern Ireland into some sync with GB. The main provisions in the Act are:
- early conciliation before and after institution of proceedings before an industrial tribunal or Fair Employment Tribunal where a prospective claimant must first have submitted the details of their claim to the Labour Relations Agency before they can lodge the claim at a tribunal
- extended confidentiality provisions to ensure that the full range of Labour Relations Agency dispute resolution services is appropriately protected
- provision for a neutral assessment service in tribunal proceedings – although this is currently offered by the tribunals
- provisions in relation to protected disclosures including to remove requirement for good faith but reduce compensation if this was not the case and also the close the Sodexho loophole – this was enacted under the Commencement No1 Order
- a power to make regulations requiring regulators and other bodies prescribed as recipients of whistleblowing disclosures to report annually on disclosures of information made by workers
- provisions specifically to include public interest disclosure protections for student nurses and student midwives
- provisions to make employers vicariously liable if an employee who makes a protected disclosure subsequently experiences detriment from colleagues
- provisions to empower the Department for the Economy, by regulations, to deal with the provision of apprenticeships and traineeships
- powers to make provision concerning abuse of zero hours contracts or arrangements, which is likely to include a ban on exclusivity clauses
- provisions to establish certain requirements in relation to the reporting of gender pay differentials and gender pay gap reporting
- provision that the Department for the Economy’s power to amend certain legislative provisions under the Employment Rights (Northern Ireland) Order 1996, including the qualifying period for the right to claim unfair dismissal, must be laid before the Assembly for approval before implementation.
The main areas of divergence include:
- discrimination legislation
- disciplinary and grievance procedures
- conciliation and tribunal procedures
- redundancy consultation
- compromise agreements.
In general terms the forms of discrimination in Northern Ireland are the same as in Great Britain – sex, marital status, race, sexual orientation (although in Northern Ireland the Civil Partnership Act 2004 applies, but not the Marriage (Same Sex Couples) Act 2013), religious belief, disability and age.
Due to its history, Northern Ireland has had legislation prohibiting discrimination on grounds of religious belief and/or political opinion since 1976 and for over thirty years it has been a high profile political and legal issue. Also the very detailed procedures for monitoring, recording and reporting introduced in 1989 have had an impact on the level of information expected by courts and tribunals dealing with discrimination issues.
The introduction of the Equality Act 2010 in Great Britain maintains these ’protected characteristics’, but also brings into statute concepts of associative and perceptive discrimination and additional disability discrimination elements. On the whole, such legislative differences may not have a practical effect on managing and promoting equality in the workplace, but it will have an impact on disputes and employment litigation. There will be differences in how tribunals in Great Britain and Northern Ireland apply tests of discrimination and an increasing divergence in the body of case law in this area.
Although the Equality Act 2010 extends the existing discrimination law and protections, Northern Ireland employees do not get the direct benefit of this consoldidated legislation. However, employees in Northern Ireland still have the benefit of the common law principles, such as perceptive and associative discrimination (see Coleman v Attridge Law and another  IRLR 722 ECJ) which the Equality Act 2010 codified and of course, employers in Northern Ireland may extend the other protections such as to stop asking unnecessary pre-employment health questions.
The expected divergence in case law may lead to the decision of the Employment Appeal Tribunal and England and Wales Court of Appeal having less persuasive weight in Northern Ireland tribunals in the areas of divergence.
The Equality Commission for Northern Ireland (The Commission) has published practical unified guidance to help employers comply with discrimination legislation.
Gender pay gap reporting
The recent requirement on organsiations in Great Britain to measure and report gender pay gaps is not, currently, applicable to employees in Northern Ireland, although some companies with employees in Northern Ireland have included them in the overall report. There were provisions in the Employment Act (Northern Ireland) 2016 (section 19) dealing with this matter but still have not been enacted despite the Act stating that the first regulations in relation to Gender Pay Gap Reporting must be made by 30 June 2017.
Essentially the provisions in Northern Ireland, when finally enacted, set out that employers must publish information, annually, showing whether gender pay disparities exist between employees. The information is to be presented by reference to prescribed factors and will give details of the method used to calculate any statistics presented. Where gender pay differences are identified, an employer must publish an action plan to eliminate them and provide a copy to employees and any recognised trade union. The size of employer to which the requirements apply, indicated by the number of employees and workers in the organisation, is to be established by regulations.
Unlike in GB the statistics must also be broken down by ethnicity and disability.
It is anticipated that the other provisions may mirror the GB provisions but could have a lower employee trigger rate.
The Employment Equality (Age) Regulations (Northern Ireland) 2006 contain similar provisions to those contained in the Equality Act 2010 in Great Britain. Likewise, the Employment Equality (Repeal of Retirement Age Provisions) Regulations (Northern Ireland) 2011 removed the default retirement age so employers can no longer apply a default retirement age without justification as is the case in Great Britain.
Discrimination on grounds of religious belief or political opinion
The main piece of legislation in this area is the Fair Employment and Treatment (Northern Ireland) Order 1998.
Note the wider definition which includes political opinion and since 2003 the Fair Employment and Treatment Order (Amendment) Regulations (Northern Ireland) 2003 amended the 1998 Order to include ’similar philosophical belief’ in the definition of religious belief. Case law in Northern Ireland has confirmed that political opinion can include strong socialist or pro-trade union beliefs as well as more traditional splits between Nationalist and Unionist. Some of the cases involve claims against trade unions relating to belief or lack of belief in privatisation of public services. Claimants alleging less favourable treatment by reason of union activities often add to the normal claim with one of political discrimination, because there can be financial advantage in relation to awards made by a tribunal.
Registration, monitoring and reporting regime
The most important and fundamentally different aspect of discrimination law in Northern Ireland compared to Great Britain is the requirement set out in Articles 47-69 of Part 7 of the Fair Employment and Treatment (Northern Ireland) Order 1998. This introduces a regime with no statutory equivalent in Western Europe, where employers have to register with the Equality Commission of Northern Ireland (The Commission), retain and record suitable data, file an annual monitoring report to The Commission and conduct periodic reviews. Only the main points are considered in this factsheet as there are detailed monitoring and reporting regulations.
Where a business employs more than ten people working 16 hours a week or more within Northern Ireland in any week then the employer must apply to The Commission for registration. This must be done within four weeks and it is a criminal offence to fail to register. The Commission publishes an annual list of all businesses that are registered. If there is a change of ownership then under Article 49 The Commission must be advised of this.
Articles 52-54 set out a requirement for employers to obtain from their employees information about their perceived religion and to provide this information in an annual monitoring return to the Commission. The format of the monitoring return is set out in the legislation. The information is required in relation to employees, applicants for jobs, appointees and apprentices. Those employing more than 250 people are required to submit additional information covering promotions and leavers. In practice, smaller employers are advised to retain such information because it will be relevant for the periodic review – see below.
It is a criminal offence to fail to file a return or to file an inaccurate return. The Commission provides guidance on completing monitoring returns and also on how to comply with the detailed monitoring regulations.
Under Article 55 each registered employer must at least once every three years review the composition of people employed in and ceasing to be employed in its workforce. It must do so for the purpose of determining whether members of the Roman Catholic and the Protestant communities are enjoying and are likely to continue to enjoy, fair participation in employment in the concern. The review involves a substantial level of work. The ability to complete it is very dependent upon the employer having kept full and accurate records of the religious background of all its employees, all job applicants and for larger employers, all applicants for promotion and all leavers.
The Commission may require to see a review and can give advice and later direction as to how this is to be carried out and as to the conclusions. It does request and consider these reviews and has on occasion required changes. In addition, a review can be required as a discoverable document in Tribunal and the statistics or other information contained in the review may be relevant to discrimination claims.
The Commission may undertake formal enquiries and require undertakings from an employer. It also can and on occasion does, require the setting of timetables by employers. The legislation stops short of recommending positive discrimination, but clearly allows for affirmative action. However, because of the complicated legal and technical issues surrounding affirmative action it is strongly recommended that affirmative action measures should only be introduced after consultation with The Commission.
Penalties on employers
Employers should be aware that as well as some breaches of the monitoring provisions being criminal offences, The Commission has available a substantial penalty that is not matched in Great Britain. Where The Commission considers that an employer is not affording equality of opportunity and where the employer has not complied with appropriate instructions or requirements from The Commission or given appropriate undertakings, The Commission may serve a notice that the employer is no longer qualified. An employer who is not qualified will not be permitted to obtain contracts for any work on behalf of Government or public bodies and will not be permitted to obtain grants otherwise available to businesses. For most employers in Northern Ireland this would create major problems and most public tendering processes require the employer to certify that it is qualified. In practice The Commission has almost never had to make use of this power because sensible employers will actively engage with it.
The monitoring and reporting regime is backed up by detailed regulations and also a detailed code of practice. If employers are unclear about the position it will usually be sensible to contact The Commission and obtain its advice/approval. One general effect of the detailed monitoring and reporting regime and the way in which this may be considered by a tribunal is that recruitment and appointment procedures need to be more detailed and more carefully documented than is sometimes the case in Great Britain. Tribunals in Northern Ireland are more willing to draw an inference from failures in procedure or in paperwork that unlawful discrimination has taken place. The practical effect is that employers/HR functions must have someone responsible for monitoring/reporting and for ensuring that recruitment and promotion procedures operate in line with the relevant codes of practice, even though this may take longer or require more resources.
The Race Relations (Northern Ireland) Order 1997 (RRNIO 1997) applies similar provisions to those under the Equality Act 2010 in Great Britain. However in Northern Ireland, the Irish travellers community is specifically defined as a racial group for the purposes of the legislation. In practice, claims are often brought not so much based on race, but on nationality, by way of a comparison with and alleging less favourable treatment of those in Ireland/Northern Ireland when compared with the treatment of other employees in England, Scotland or Wales. In the case of Faulkner and others v BT (Northern Ireland) and others [2008 NICA 39] the Northern Ireland Court of Appeal refused to rule on whether employees in Northern Ireland could compare themselves with employees in Great Britain in respect of bonuses and grading and the case was remitted to the Industrial Tribunal as Robert Johnston v BT Plc (unreported 3935/01IT 26 February 2010 NIIT). The Industrial Tribunal held that ’the claimant is not precluded from comparing himself, in the present context, with people who worked in Great Britain’ but went on to find that the difference in treatment could be justified.
The tribunals have struggled with whether being from Northern Ireland or being Northern Irish can constitute an appropriate grouping covered by the RRNIO 1997 and as a result claims continue to be brought along with claims under the Fair Employment Order involving religion or politics as well. In the tribunal, chairmen have dealt practically with this by giving consideration to discrimination on the grounds of not being for instance, English or Scottish.
Harassment - display of flags and emblems
Employers need to adjust harassment policies to take account of the particular concerns in Northern Ireland surrounding use of flags and emblems such as union jacks, tricolours, lilies and so on. Some football shirts are associated with different sides of the Northern Irish community and wearing a Rangers or Celtic shirt at work has been found to amount to harassment. In Brennan v Short Brothers plc (unreported, 63/92FET 1995, FET) the President of the Fair Employment Tribunal stated that ’if football shirts ’have sectarian significance’ they are not simply a ‘football shirt’ regardless of the intention with which they are worn. It has to be emphasised as often as is necessary that anything which identifies community allegiance needs justification in the workplace’. There is considerable case law about differing circumstances relating to flags and other emblems which may have political significance.
A neutral workplace has been more of an issue in 2012 as a result of the Diamond Jubilee celebrations and the Olympics. Employers have had to tread carefully so as not to be insensitive to any certain sector of their workforce, but also allow a sense of celebration by those who want to celebrate. The issue of the Olympics and the stocking of products with Union Jacks caused such a stir that the Equality Commission for Northern Ireland had to produce guidance for retailers.
There are certain symbols which are deemed not to cause offence so long as they are worn proportionately and with decorum, including poppies and shamrock. However, it would be normal for an employer to have a policy which provides times when such items are work, for how and the manner in which they are worn. Further guidance is given in Promoting a good & harmonious working environment: a guide for employers and employees.
Employers should refer to guidance on the employment of people with troubles-related convictions published by the Office of the First Minister and Deputy First Minister, but should be aware that this remains a sensitive issue with potential impact on employee and public relations.
The removal of discrimination questionnaires in Great Britain on 6 April 2014 does not apply in Northern Ireland and there is no consultation on it as yet. Employers should assume that questionnaires remain and be aware that these are more widely used in Northern Ireland.
Recruitment in Northern Ireland is specifically covered in the codes of practice issued by the Equality Commission for Northern Ireland (see codes of practice table below). Due to the issues raised in legislation, case law and the codes of practice in Northern Ireland, it is important that employers consider the following points when recruiting:
- Ensuring that the job and the person specification are thoroughly developed and the employer can show how this was applied in recruiting and selecting the right candidates.
- Ensuring that there are no discriminatory criteria to be applied.
- Advertise widely to ensure a representative pool.
- Using standard application forms to try to prevent details which could be provided through CVs and construed as discriminatory, for example age (age discrimination), school or hobbies (religion or political opinion discrimination).
- Having properly constituted shortlisting and interview panels, to reflect equality as far as possible.
- Ensuring that those involved in shortlisting and/or selection are trained in equal opportunities.
- Ensuring good record keeping throughout the process.
More information and guidance on recruiting is available from the Equality Commission for Northern Ireland.
Northern Ireland Act 1998
Under Section 75 of the Northern Ireland Act 1998, public authorities carrying out their functions in Northern Ireland must have due regard to the need to promote equality of opportunity and to the desirability of promoting good relations between persons of different religious belief, political opinion, racial group, age, marital status, between men and women, and between persons with a disability and persons without. Section 75 also requires public authorities to have due regard to the need to promote equality of opportunity between persons with dependents and persons without dependents.
The Act requires the public authorities to review their policies at intervals and, where considering changing any policy, to conduct where necessary an Equality Impact Assessment (EQIA). This will involve public consultation and so it can take considerable time. Private sector employers involved in tendering for public sector projects may well be asked to provide information and confirmation that their employment practices will follow appropriate guidelines and will assist a public authority in carrying out its obligation under section 75 of the Act.
The Commission has published guidance to public authorities on their obligations.
Dispute resolution procedures
In Great Britain the statutory disciplinary and grievance procedures were repealed on 6 April 2009 and replaced with the new Acas code of practice on disciplinary and grievance procedures. However, importantly in Northern Ireland the equivalent regulations, the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations remained in force.
Following a consultation period, the Employment Act (Northern Ireland) 2011 came into force on 3 April 2011. The main effects of the Act are:
- The statutory grievance procedure contained in the Employment (Northern Ireland) Order 2003 is repealed and is now replaced by the Code of practice on disciplinary and grievance procedures (see below). Non compliance with the Code by an employer may result in a tribunal, if it considers it just and equitable to do so, increasing any award by up to 50 per cent. Where the employee has failed to comply with the Code any award can be reduced by up to 50 per cent. In Great Britain the award can be reduced by up to 25 per cent.
- Importantly, the Act retains for Northern Ireland in the long term the statutory three step minimum disciplinary procedure and a dismissal which fails to follow this procedure will remain automatically unfair and a tribunal will remain able to increase any award by reason of that by up to 50 per cent. In Great Britain the award can be increased by up to 25 per cent.
- The statutory dismissal and disciplinary procedure applies to most terminations including redundancy and the termination of fixed-term contracts.
- Former provisions allowing for an extension of time to bring a tribunal claim where statutory procedures are repealed. This should simplify the question of time limits, because the time limit for most matters will be three months from the date of termination or the act complained of.
- The Act also brings in various technical changes to update Northern Ireland law on matters such as determination by a tribunal without a hearing, enforcement of awards without the need for a county court Order, restriction of publicity and widening the power of the Fair Employment Tribunal to hear all claims which could be heard by an Industrial Tribunal, thus removing the need for two separate hearings.
- The Act removes the limit on the time period during which the Labour Relations Agency can attempt to conciliate.
The qualifying period before an employee can bring a claim of unfair dismissal remains at one year and has not been increased to two years as in Great Britain and there seems to be no political appetite to change this in the future.
Although for practical purposes civil procedures in Northern Ireland and Great Britain are very similar, there are differences in organisation. Northern Ireland has a specific Fair Employment Tribunal to deal with claims of religious/political discrimination, with special panels for appointment of Tribunal members and to make a distinction from industrial tribunals which deal with other matters.
Employment tribunals in Northern Ireland therefore consist of the Fair Employment Tribunal and the industrial tribunals. As in Great Britain, procedural matters (and some cases) are heard by a legally qualified person sitting alone. Full hearings normally consist of the legally qualified person and two lay members. In Northern Ireland the legally qualified person is referred to as a Chairman, whereas in Great Britain they are Employment Judges.
In Great Britain any appeal from the decision of an employment tribunal goes to a special body, the Employment Appeals Tribunal. By contrast in Northern Ireland there is no equivalent to the Employment Appeals Tribunal. Until Easter 2010 an appeal had to be made by asking the Tribunal to state a case to the Court of Appeal, which meant that the Tribunal whose decision was being appealed against, framed the questions for the Court. Since then it is possible to make the application directly to the Court of Appeal, which will be a more satisfactory process.
Tribunals in Northern Ireland do not automatically make use of witness statements, although they will normally do so in discrimination cases.
By reason of recent rulings from the Northern Ireland Court of Appeal there are very few cases where a tribunal will permit a preliminary hearing, even on issues such as jurisdiction, meaning the claim has to go to a full hearing at which preliminary matters will be dealt with.
There is currently a Steering Advisory Committee reviewing the Tribunal Rules of Procedure which it is hoped will advise on ways to make the tribunal system in Northern Ireland more efficient and effective.
The following changes to tribunal procedures introduced in Great Britain do not apply in Northern Ireland:
- The qualifying period before an employee can bring a claim of unfair dismissal remains at one year and has not been increased to two years as in Great Britain. There seems to be no political appetite to change this in the future.
- There is only the statutory cap for compensation for unfair dismissal in Northern Ireland, unlike the cap of one year's salary or the upper statutory limit (whichever is lower) in Great Britain.
- A weeks' pay in Northern Ireland for redundancy purposes is currently capped at a different figure from Great Britain - currently £530 rather than £508 in Great Britain.
- Mandatory early conciliation whereby employees who are intending to make a claim to an employment tribunal must first notify Acas who will then attempt to settle the dispute was introduced in Great Britain but not in Northern Ireland, although there are provisions for this in the Employment Act (Northern Ireland) 2016.
- The concept of ‘protected conversations’ does not apply in Northern Ireland and employers should use ‘without prejudice’ discussions carefully and only if they are sure if this is applicable.
- There are additional powers for employment judges in Great Britain (but not for employment judges in Northern Ireland), including sitting alone in certain cases and having initial sifts to see if cases should be struck out early.
- Employment tribunals in Great Britain can order employers who lose tribunal claims to pay a financial penalty on top of any award made to the claimant.
- Most importantly, there are no fees applicable in Northern Ireland for a claimant to lodge or continue with a claim and there is no political appetite to change this in the future.
The Industrial Court deals with union recognition/de-recognition. The union position in Northern Ireland is somewhat complicated because there is a range of active unions and some are part of larger Great Britain unions, some locally based in Northern Ireland and some part of larger unions in the Republic of Ireland.
The changes to compromise agreements implemented in Great Britain under the Enterprise and Regulatory Reform Act 2013 do not apply in Northern Ireland and such agreements have not been renamed settlement agreements'. If writing a compromise agreement for an employee based in Northern Ireland employers need to check that the legislative references are correct and also that the certificates are signed by a solicitor with an appropriate practicing certificate in Northern Ireland.
Care should be taken where there may be a substantial link to two or more jurisdictions. For example, a company in England employing a sales manager for Northern Ireland, but who also works in England two days a week may need to enter into two compromise agreements; one for Northern Ireland and one for England and Wales, or one agreement with references to the legislation in both jurisdictions.
Furthermore, the concept of protected conversations has not been introduced in Northern Ireland and therefore should not be used with Northern Ireland employees. However, Northern Ireland does retain, as in Great Britain, the concept of 'without prejudice' discussions. These are 'off the record conversations' which cannot normally be used in further proceedings, only where such conversations are entered into where there is an existing dispute between the parties. Legal advice should be sought if considering such action.
Despite the changes in Great Britain not applying in Northern Ireland, the DELNI has issued a consultation on employment changes, including changes in these areas.
For technical reasons when the revised Transfer of Undertakings (Protection of Employment) Regulations 2006 were brought into force the part which deals with a business transfer covers the whole of the UK. However the part which deals with service provision change does not extend to Northern Ireland and instead there is separate legislation - the Service Provision Change (Protection of Employment) Regulations (Northern Ireland) 2006. For practical purposes this difference is really just an irritation but in the Northern Ireland legislation the definition of an organised grouping of employees for the purposes of service provision change is a group of employees situated in Northern Ireland whereas the Great Britain legislation refer to a group of employers situated in Great Britain.
Although Northern Ireland entered into joint consultations at the same time as Great Britain regarding the Tupe reforms, the changes which came into force in Great Britain under the Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 2014 on 31 January 2014 have not been brought into force in Northern Ireland. The Northern Ireland government has not made any firm decision on the implementation of the reforms and no draft amendments have been issued to date.
It is worth noting that the application of Tupe in public sector and local government contracting in England and Wales was subject to Government circulars on outsourcing, including:
- the Code of Practice on Workforce Matters in Public Sector Service Contracts which applied to the public sector, and
- the Code of Practice in Workforce Matters in Local Authority Service Contracts which applied to local government.
These were known as the two-tier workforce codes. In essence they stated that those employees moving from the public sector and local authorities to private sector employers should be no worse off. However, they went even further, in that they stated that any new employees who employers brought on after the transfer to work alongside the public sector and local authority workers should, likewise, not be on any less favourable terms. This avoided a two-tier workforce, but did have implications for pricing of contracts.
In England and Wales the two codes and associated guidance on a two-tier workforce in the public or local government sector were withdrawn in December 2010 and March 2011. The status of the guidance in Northern Ireland has always been somewhat ambiguous and with the withdrawal of the codes in England and Wales this has become more so. Some public providers continue to insist on provisions related to these codes in outsourcing contracts. Furthermore, the draft Local Government Best Value (Exclusion of Non-commercial Considerations) Order (Northern Ireland) 2011 and associated guidance appear to incorporate the principles of the past codes on the avoidance of a two-tier workforce into a new Northern Ireland code which is working its way through the Northern Ireland Assembly.
In Northern Ireland there has been no reduction in in the consultation period where there are 100 or more proposed redundancies, which remains at 90 days. Fixed term-employees are included in this number, unlike in Great Britain.
Working Time regulations and holidays
The minimum number of holidays is in line with that in Great Britain, although DELNI is keeping this under review.
It is worth noting that the public/bank holidays in Northern Ireland are slightly different to Great Britain. The 12 July is a public holiday and many employees also take 13 July. The 17 March is also a bank holiday, but is not taken by all employees. When drafting holiday entitlement/procedures there is potential for a religious belief or political opinion discrimination claim if care is not taken about the allocation of holidays.
In Patterson v Castlereagh Borough Council (unreported, 1793/13 25 June 2014, IT) an industrial tribunal in Northern Ireland stated that it ‘had no hesitation in following, but also adopting, for the purposes of these proceedings, the decision of the Employment Appeal Tribunal in Bear Scotland’ and therefore it is assumed that the tribunals will follow the case law as it develops in Great Britain and the EU on holiday pay.
The Data Protection Act 1998 applies in Northern Ireland and the Information Commissioner operates in Northern Ireland. The Information Tribunal will sit in Northern Ireland as necessary.
When considering retention of data, employers should remember that in order to comply with The Equality Commission for Northern Ireland requirements for the periodic review it will be necessary to retain monitoring information and some information on recruitment, appointment or promotion applications for a period of at least three years. Such data is likely to be sensitive personal data.
Although not strictly legal divergence, it is worth noting the difference in cultural approach to employment related matters, including holidays (sensitivities around St Patrick's Day and 12 and 13 July), wearing of symbols (sensitivities around wearing poppies, shamrock etc), 'national holidays' (such as Royal Weddings) and Troubles Related Convictions.
Other employment areas
There are a number of other employment areas in Northern Ireland which employers should be aware of.
Shared parental leave applied in Northern Ireland from April 2015 under the Work and Families (Northern Ireland) Act 2015 and associated regulations.
Also under the Act the qualifying period for adoption leave will be removed and statutory adoption pay will be paid at 90 per cent of earnings for the first six weeks and primary adopters will be entitled to paid time off work to attend up to five introductory meetings before a child is placed with them for adoption. Secondary adopters will be entitled to unpaid time off to attend two such meetings. A similar right to take unpaid time off work is provided for the partners of new mothers to attend ante-natal appointments.
The right to request flexible working will be extended to all employees with at least 26 weeks' continuous employment.
Also in April 2015 the right to take unpaid parental leave was be extended to parents of any child under the age of 18.
Rates for statutory payments including statutory maternity pay, statutory paternity pay, statutory adoption pay and statutory sick pay are varied under the Social Security Benefits Up-Rating Orders in Northern Ireland.
The National Minimum Wage (Amendment) Regulations which amend national minimum wage rates apply to Northern Ireland.
There are additions to prescribed persons for the purposes of whistleblowing under the Public Interest Disclosure (Prescribed Persons) (Amendment) Order (Northern Ireland) Order 2014.
The Statutory Sick Pay (Maintenance of Records) (Revocation) Regulations (Northern Ireland) 2014 revoke Regulation 13 of the previous 1982 Regulations regarding the retention of statutory sick pay records.
The Employment Relations (Northern Ireland) Order 1999 (Blacklists) Regulations 2014 prohibit the compilation, use, sale or supply of blacklists of details of trade union activists where the purpose is to discriminate against workers on the grounds of trade union membership. The Regulations amend the Employment Rights (Northern Ireland) Order 1996.
Comparison of principal Northern Ireland and Great Britain employment law
A comparison of the principal Northern Ireland and Great Britain employment law is provided below. There are many other pieces of legislation and it is important that employers working on a particular problem take care to check which legislation applies.
Northern Ireland: Equal Pay Act (Northern Ireland) 1970
Great Britain: Equal Pay Act 1970 | Equality Act 2010
Northern Ireland: Sex Discrimination (Northern Ireland) Order 1976
Great Britain: Sex Discrimination Act 1975 | Equality Act 2010
Northern Ireland: Health and Safety at Work (Northern Ireland) Order 1978
Great Britain: Health and Safety at Work Act 1974
Northern Ireland: Judicature Act (Northern Ireland) 1978
Great Britain: Supreme Court Act 1981
Northern Ireland: Rehabilitation of Offenders (Northern Ireland) Order 1978
Great Britain: Rehabilitation of Offenders Act 1974
Northern Ireland: Wages (Northern Ireland) Order 1988
Great Britain: Wages Act 1986
Northern Ireland: Fair Employment Act (Northern Ireland) 1989
Great Britain: No equivalent
Northern Ireland: Access to Personal Files and Medical Reports (Northern Ireland) Order 1991
Great Britain: Access to Medical Reports Act 1988
Northern Ireland: Disability Discrimination Act 1995. The Act itself applies to Northern Ireland, with seven Orders in Counsel for Northern Ireland to bring the legislation into effect
Great Britain: Disability Discrimination Act 1995 | Equality Act 2010
Northern Ireland: Employment Rights (Northern Ireland) Order 1996
Great Britain: Employment Rights Act 1996
Northern Ireland: Race Relations Order (Northern Ireland) 1997
Great Britain: Race Relations Act 1976 | Equality Act 2010
Northern Ireland: Trade Union and Labour Relations (Northern Ireland) Order 1995
Great Britain: Trade Union and Labour Relations (Consolidation) Act 1992
Northern Ireland: Data Protection Act 1998
Great Britain: Data Protection Act 1998
Northern Ireland: Fair Employment and Treatment (Northern Ireland) Order 1998
Great Britain: No direct equivalent, although similar religious discrimination provisions are contained in the Employment Equality (Religion or Belief) Regulations 2003 or Equality Act 2010
Northern Ireland: Northern Ireland Act 1998
Great Britain: No equivalent
Northern Ireland: Public Interest Disclosure (Northern Ireland) Order 1998
Great Britain: Public Interest Disclosure Act 1998
Northern Ireland: National Minimum Wage Act 1998
Great Britain: National Minimum Wage Act 1998
Northern Ireland: Working Time Regulations (Northern Ireland) 1998
Great Britain: Working Time Regulations 1998
Northern Ireland: Employment Relations (Northern Ireland) Order 1999
Great Britain: Employment Relations Act 1999
Northern Ireland: Maternity and Parental Leave etc Regulations (Northern Ireland) 1999
Great Britain: Maternity and Parental Leave etc Regulations 1999
Northern Ireland: Sex Discrimination (Gender Reassignment) Regulations (Northern Ireland) 1999
Great Britain: Sex Discrimination (Gender Reassignment) Regulations 1999 or Equality Act 2010
Northern Ireland: Part-Time Workers (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2000
Great Britain: Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000
Northern Ireland: Sex Discrimination (Indirect Discrimination and Burden of Proof) Regulations (Northern Ireland) 2001
Great Britain: Sex Discrimination (Indirect Discrimination and Burden of Proof) Regulations 2001 | Equality Act 2010
Northern Ireland: Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations (Northern Ireland) 2002
Great Britain: Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002
Northern Ireland: Employment (Northern Ireland) Order 2002 and the Employment (Northern Ireland) Order 2003
Great Britain: Employment Act 2002
Northern Ireland: Flexible Working (Eligibility, Complaints and Remedies) Regulations (Northern Ireland) 2003 and Flexible Working (Procedural Requirements) Regulations (Northern Ireland) 2003
Great Britain: Flexible Working (Eligibility, Complaints and Remedies) Regulations 2002 and Flexible Working (Procedural Requirements) Regulations 2002
Northern Ireland: Employment Equality (Sexual Orientation) Regulations (Northern Ireland) 2003
Great Britain: Employment Equality (Sexual Orientation) Regulations 2003 | Equality Act 2010
Northern Ireland: Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004
Great Britain: Employment Act 2002 (Dispute Resolution) Regulations 2004
Northern Ireland: Employment Relations (Northern Ireland) Order 2004
Great Britain: Employment Relations Act 2004
Northern Ireland: Civil Partnership Act 2004
Great Britain: Civil Partnership Act 2004
Northern Ireland: Gender Recognition Act 2004
Great Britain: Gender Recognition Act 2004
Northern Ireland: Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 and the Fair Employment Tribunal (Rules of Procedure) Regulations (Northern Ireland) 2005
Great Britain: Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004
Northern Ireland: Information and Consultation of Employees Regulations (Northern Ireland) 2005
Great Britain: Information and Consultation of Employees Regulations 2004
Northern Ireland: Employment Equality (Age) Regulations (Northern Ireland) 2006
Great Britain: Employment Equality (Age) Regulations 2006 or Equality Act 2010
Northern Ireland: Transfer of Undertakings (Protection of Employment) Regulations 2006
Great Britain: Transfer of Undertakings (Protection of Employment) Regulations 2006
Northern Ireland: Service Provision Change (Protection of Employment) (Northern Ireland) Regulations 2006
Great Britain: Transfer of Undertakings (Protection of Employment) Regulations 2006
Northern Ireland: Work and Families (Northern Ireland) Order 2006
Great Britain: Work and Families Act 2006
Northern Ireland: Smoking (Northern Ireland) Order 2006
Great Britain: Smoking, Health and Social Care (Scotland) Act 2005 | Health Act 2006
Northern Ireland: Working Time (Amendment) Regulations (Northern Ireland) 2007
Great Britain: Working Time (Amendment) Regulations 2007
Northern Ireland: Flexible Working (Eligibility, Complaints and Remedies) (Amendment) Regulations (Northern Ireland) 2010
Great Britain: Flexible Working (Eligibility, Complaints and Remedies) (Amendment) Regulations 2009
Northern Ireland: No equivalent, but see Employment Act (Northern Ireland) 2011 for repeal of statutory procedures
Great Britain: Employment Act 2008
Northern Ireland: No equivalent, but see Employment Act (Northern Ireland) 2011 (on time off for training)
Great Britain: Apprenticeships, Skills, Children and Learning Act 2009
Northern Ireland: No equivalent
Great Britain: Equality Act 2010
Northern Ireland: Employment Act (Northern Ireland) 2011
Great Britain: No equivalent
Northern Ireland: The Industrial Tribunals (Constitution and Rules of Procedure) (Amendment) Regulations (Northern Ireland) 2011 and The Fair Employment Tribunal (Rules of Procedure) (Amendment) Regulations (Northern Ireland) 2011
Great Britain: No equivalent
Northern Ireland: The Agency Workers Regulations (Northern Ireland) Regulations 2011
Great Britain: The Agency Workers Regulations 2010
Northern Ireland: The Employment Equality (Repeal of Retirement Age Provisions) Regulations (Northern Ireland) 2011
Great Britain: The Employment Equality (Repeal of Retirement Age Provisions) Regulations 2011
Northern Ireland: The Parental Leave (EU Directive) (Northern Ireland) Regulations 2013
Great Britain: The Parental Leave (EU Directive) Regulations 2013
Northern Ireland: No equivalent. There has been a consultation on a number of the changes implemented in Great Britain including mandatory early conciliation and reform of the law on whistleblowing which was due to close on 5 November 2013. The removal of discrimination questionnaires will not apply in Northern Ireland and there is no consultation on it as yet. Employers should assume that questionnaires remain.
Great Britain: The Enterprise and Regulatory Reform Act 2013 which implemented a number of key changes in Great Britain which are not applicable in Northern Ireland.
Northern Ireland: No equivalent
Great Britain: The Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 2014
Northern Ireland: Work and Families Act (Northern Ireland) 2015
Great Britain: Children and Families Act 2014 and regulations
Codes of practice
There are a range of codes of practice usually issued by either the Labour Relations Agency, or the Equality Commission for Northern Ireland or the Department of Employment and Learning for Northern Ireland. The provisions of some of these do vary significantly from equivalent codes of practice in Great Britain, some of them being much longer and more detailed. In particular the Fair Employment in Northern Ireland code of practice relating to discrimination on grounds of religious belief or political opinion includes significant details about monitoring, recruitment and appointments which need to be taken into account.
The principal codes of practice currently in force are:
- Code of practice on disclosure of information to trade unions for collective bargaining purposes - Issued by Labour Relations Agency
- Code of practice on time off for trade union duties and activities - Issued by Labour Relations Agency
- Code of practice on disciplinary and grievance procedures - Issued by Labour Relations Agency Fair employment in Northern Ireland code of practice - Issued by Equality Commission for Northern Ireland
- Code of practice on removing sex bias from recruitment and selection - Issued by Equality Commission for Northern Ireland
- Code of practice on equal pay - Issued by Equality Commission for Northern Ireland
- Code of practice for the elimination of racial discrimination and the promotion of equality of opportunity in employment - Issued by Equality Commission for Northern Ireland
- Disability discrimination code of practice on employment and occupation - Issued by Equality Commission for Northern Ireland
- Disability code of practice: trade organisations and qualifications bodies - Issued by Equality Commission for Northern Ireland
- Code of practice: access and unfair practices during recognition and derecognition ballots - Issued by Department of Employment and Learning in Northern Ireland
- Code of practice on industrial action ballots and notice to employers - Issued by Department of Employment and Learning in Northern Ireland
Useful contacts and further reading
Department for the Economy (for employment law proposals)
The Executive Office (for equality legislation proposals)
nibusinessinfo.co.uk - Northern Ireland's online business advice service
Pinsent Masons - Horizon watching
Book and reports
MCMANUS, M. and GILLEN, P. (2013) Comparative analysis of employment law in Great Britain, Northern Ireland and the Republic of Ireland [online]. Belfast: Pinsent Masons.
CIPD members can use our online journals to find articles from over 300 journal titles relevant to HR.
Members and People Management subscribers can see articles on the People Management website.
This factsheet was written and updated by Paul Gillen.
Paul Gillen: Pinsent Masons LLP
Paul is a Partner who heads the Employment Law team at Pinsent Masons LLP in Belfast. Previously, he worked for over ten years in HR management within the manufacturing, engineering, retail and construction sectors. Paul specialises in advising public and private sector clients on contentious and non-contentious matters, TUPE, equality and diversity (including public sector equality duties), policy and procedure, organisational structure and development and strategic HR support. He specialises in employment matters in reorganisations and insolvency.
Paul is a Chartered Fellow of the Chartered Institute of Personnel and Development and is Vice-Chair of the Northern Ireland CIPD Branch. He’s also Visiting Professor to the School of Law at Ulster University and sits on the CBI Employment & Skills Committee. He is a regular employment law speaker for Legal Island, the CIPD, CBI and other organisations as well as delivering the CIPD-accredited Advanced Diploma in Employment Law.