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 (Great Britain, made up of England, Wales and Scotland). While in practical terms most employees’ employment rights will be the same in Northern Ireland as in Great Britain, the legal references in employment contracts may be different due to Northern Ireland-specific legislation. Since devolution of employment law powers to the Northern Ireland Assembly, we have seen a distinct divergence between employment laws in Northern Ireland and those in Great Britain. However, since the suspension of the Northern Ireland Assembly in January 2017, there have been very few legislative changes.
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 agreements, 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 laws, and lists codes of practice that apply in Northern Ireland.
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Devolution and divergence
For many years, it was Government policy that employment law in Northern Ireland should be broadly in line with the rest of the UK; 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. For example, the Race Relations Act was passed in Great Britain in 1976, whereas the Race Relations (Northern Ireland) Order was passed in 1997. Some legislation, such as the Data Protection Act 1998 (now the Data Protection Act 2018), 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as well as the rest of the UK, while other legislation, such as the Disability Discrimination Act 1995, has been repealed in the UK but remains in force in Northern Ireland.
In practical terms, most employees’ entitlements and employer obligations are the same in Northern Ireland as in Great Britain, although the legislation underpinning them may be specific to the region. For example, Northern Ireland employment contracts should refer to the Employment Rights (Northern Ireland) Order 1996 and not the Employment Rights Act 1996. Organisations should take particular care with compromise agreements because failing to refer to the appropriate legislation may affect the validity of the agreement.
Following devolution in 1998, employment and discrimination law devolved to the Northern Ireland Assembly in Stormont. Confusingly, some legislation, still applies to Northern Ireland as well as the rest of the UK, while other legislation, for example, the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE), remains as originally enacted in Northern Ireland, as the amendments made in 2014 in Great Britain were not applicable. This is a complex position.
Within Northern Ireland, responsibility for employment law is split. The Department for the Economy is responsible for general employment rights, such as unfair dismissal and working time, while discrimination law is the responsibility of the Executive Office (formerly the Office of the First Minister and Deputy First Minister). The tribunals system is the responsibility of the Department of Justice for Northern Ireland.
There have been signs of a distinct divergence between Northern Ireland employment laws and those in Great Britain, which looks set to continue. The main areas of divergence include:
- discrimination legislation
- disciplinary and grievance procedures
- conciliation and tribunal procedures
- redundancy consultation
- compromise agreements.
HR practitioners with responsibility for employees in Northern Ireland must be aware of these differences, in order to comply with the law.
At the time of writing, the Northern Ireland Assembly remains inactive and there are a number of employment initiatives in abeyance, principally the Employment Act (Northern Ireland) 2016, which many practitioners felt would bring Northern Ireland into closer alignment with Great Britain. The main provisions in the Act include:
Early conciliation, whereby a prospective tribunal claimant must first submit claim to the Labour Relations Agency before they can lodge it at a tribunal – it is understood that there are draft regulations which could be brought into force in early 2020.
Extended confidentiality protection for the full range of Labour Relations Agency dispute resolution services.
A neutral assessment service in tribunal proceedings (although this is currently offered by tribunals).
Removing the requirement for ‘good faith’ in whistleblowing claims but reducing compensation where it is absent, and closing a loophole (associated with the case Parkins v Sodexho, 2002) which gave whistleblower protection to claims for breach of an employment contract. The loophole was closed under the Employment Act (Northern Ireland) 2016 (Commencement No.1) Order (Northern Ireland) 2017, known as the 2017 Commencement Order.
A power to require the bodies prescribed as whistleblowing disclosure recipients to report annually on disclosures (enacted under the 2017 Commencement Order, but no regulations have been produced)
Providing specific public interest disclosure protection for student nurses and student midwives (enacted by the 2017 Commencement Order).
Making employers vicariously liable for any detrimental treatment from work colleagues experienced by whistleblowing employees (enacted by the 2017 Commencement Order).
Giving the Department for the Economy responsibility for the provision of apprenticeships and traineeships in Northern Ireland.
A power to tackle the abuse of zero hours contracts (likely to include a ban on exclusivity clauses).
Introducing mandatory gender pay gap reporting.
Requiring the Department for the Economy to gain approval from the Northern Ireland Assembly before amending certain provisions under the Employment Rights (Northern Ireland) Order 1996, including the qualifying period for the right to claim unfair dismissal.
Although, not strictly legal divergence, it’s worth noting the difference in cultural approach to employment related matters in Northern Ireland, including sensitivities around public holidays (such as St Patrick's Day and 12 and 13 July), the wearing of symbols (poppies, shamrocks and so on), 'national holidays' (such as Royal Weddings) and Troubles-related convictions.
In general terms, the forms of discrimination in Northern Ireland are the same as in Great Britain – sex, marital status, sexual orientation (although in Northern Ireland the Civil Partnership Act 2004 applies, but not the Marriage (Same Sex Couples) Act 2013), race, religious belief, disability and age.
Due to its history, Northern Ireland has had legislation prohibiting discrimination on grounds of religion, belief and/or political opinion since 1976, and for over 30 years it has been a high profile political and legal issue. The detailed procedures for monitoring, recording and reporting discrimination, introduced in 1989, have increased the level of information expected by courts and tribunals dealing with discrimination issues.
The Equality Act 2010 in Great Britain maintained the ‘protected characteristics’, but introduced the concepts of associative and perceptive discrimination and additional disability discrimination elements. Such legislative differences may not have a practical effect on managing and promoting equality in the workplace, but affect disputes and employment litigation. There are 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 does not apply directly to Northern Ireland employees, they are still protected by the common law principles, such as perceptive and associative discrimination (see Coleman v Attridge Law (2008) ECJ) which the Act codified and, of course, employers in Northern Ireland may choose to apply the other protections (such as not asking unnecessary pre-employment health questions).
The expected divergence in case law may lead to Employment Appeal Tribunal, and Court of Appeal decisions, in England and Wales having less weight in Northern Ireland tribunals.
The Equality Commission for Northern Ireland (The Commission) has published practical unified guide to help employers comply with discrimination legislation.
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 changed the law so employers can no longer apply a default retirement age without justification, as is the case in Great Britain.
Religious belief or political opinion discrimination
The main piece of legislation in this area is the Fair Employment and Treatment (Northern Ireland) Order 1998. In 2003, the Fair Employment and Treatment Order (Amendment) Regulations (Northern Ireland) amended the Order to include ’similar philosophical belief’ in the definition of religious belief and 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 the privatisation of public services. Claimants alleging less favourable treatment because of union activities often add in a political discrimination claim, because any award made by a tribunal for discrimination is uncapped.
The Race Relations (Northern Ireland) Order 1997 (RRNIO 1997) applies similar provisions to those under the Equality Act, however, in Northern Ireland, the Irish traveller 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, alleging less favourable treatment of employees in Ireland/Northern Ireland compared with employees in England, Scotland or Wales. In the case of Faulkner v BT (2008), NICA, 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 Johnston v BT (2010). 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.
Tribunals have struggled with whether being from Northern Ireland, or being Northern Irish, can constitute an appropriate grouping covered by the Race Relations Order and claims continue to be brought, along with claims under the Fair Employment Order involving religion or politics as well. Tribunals have dealt with this by considering discrimination on the grounds of not being, for instance, English or Scottish.
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, whereby employers have to register with the Equality Commission for Northern Ireland, retain and record suitable data, file an annual monitoring report to the commission, and conduct periodic reviews. The main points of the monitoring and reporting regulations are considered below.
A business employing more than 10 people, working 16 hours a week or more in any week, within Northern Ireland, must register with the Equality Commission for Northern Ireland. 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 registered and must be advised if there is a change of ownership.
Articles 52-54 require employers to inform the commission annually on the perceived religion of its employees, job applicants, successful job candidates and apprentices, based on information obtained from the individuals themselves. 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 file an inaccurate return.
The format of the monitoring return is set out in the legislation and the commission provides guidance on completing it and complying with the detailed monitoring regulations.
Under Article 55, each registered employer must review the composition of its workforce (both employees and ex-employees) every three years to determine whether the organisation demonstrates ‘fair participation’ by members of the Roman Catholic and Protestant communities. The review involves a substantial level of work and the employer needs full and accurate records of the religious background of all its employees and job applicants to complete it. Larger employers need information on all applicants for promotion and all leavers too.
The commission may request a review, and direct how this is to be carried out. In practice, it does do this and has on occasion required changes. In addition, reviews can required on behalf of tribunals dealing with discrimination claims.
The commission may carry out formal enquiries and require undertakings from an employer. It also can, and on occasion does, require employers to set timetables for change. The legislation stops short of recommending positive discrimination, but clearly allows for affirmative action. However, affirmative action measures should only be introduced after consultation with the commission because of the complicated legal and technical issues surrounding it.
In addition to some breaches of the monitoring provisions being criminal offences, the commission can also apply a substantial penalty, not matched in Great Britain, where it considers an employer is not providing equality of opportunity, or has not complied with the commission’s instructions or requirements, or given appropriate undertakings. This entails the commission serving a notice that the employer is no longer ‘qualified’, which means the organisation cannot obtain public sector contracts or government grants. 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 actively engage with it.
The monitoring and reporting regime is backed up by detailed regulations and a Code of Practice. Employers unclear about their position should contact the commission for advice/approval.
Recruitment and appointment procedures in Northern Ireland need to be more detailed and carefully documented than is sometimes the case in Great Britain because of the way compliance with the monitoring and reporting regime may be taken in account by tribunals. Northern Ireland tribunals are more willing to draw an inference from failures in procedure or in paperwork that unlawful discrimination has taken place. The practical effect of this is that HR functions in Northern Ireland 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 require more resources.
Employers in Northern Ireland need harassment policies that recognise the particular concerns surrounding the 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 (1995), 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, and that employers need to emphasise ‘as often as is necessary that anything which identifies community allegiance needs justification in the workplace’. There is considerable case law relating to flags and other emblems which may have political significance.
Employers have to tread carefully so as not to be insensitive to any sector of their workforce. The Diamond Jubilee celebrations and the Olympics in 2012 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, including poppies and shamrocks, which are considered not to cause offence provided they are worn proportionately and with decorum. However, employers should have a policy specifying when it is acceptable to wear such items at work, and the manner in which they are worn. Further guidance is given in the commission’s ‘Promoting a good and harmonious working environment’.
This remains a sensitive issue in Northern Ireland with a potential impact on employee and public relations. Employers should refer to guidance on the recruitment of people with troubles-related convictions published by the Office of the First Minister and Deputy First Minister.
The removal of discrimination questionnaires in Great Britain in 2014 did not apply in Northern Ireland, and there is no consultation on it as yet. Employers should be aware that questionnaires 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 section below). In order to comply with legislation, case law and the Codes of Practice, employers recruiting in Northern Ireland should:
- thoroughly develop the job and the person specification so they can show how this was applied in recruiting and selecting the right candidates
- apply no discriminatory criteria
- advertise widely to ensure a representative pool
- use standard application forms to prevent candidates disclosing details in CVs which could be construed as discriminatory, for example, age (age discrimination), school or hobbies (religion or political opinion discrimination)
- ensure shortlisting and interview panels reflect equality as far as possible
- train those involved in shortlisting and/or selection in equal opportunities
- keep good records throughout the process.
More information and guidance on recruiting is available from the Equality Commission for Northern Ireland.
Public authority equality duty
Under Section 75 of the Northern Ireland Act 1998, public authorities in Northern Ireland must promote equality of opportunity and good relations between people of different religious belief, political opinion, racial group, age, and marital status; between men and women; between disabled and non-disabled people; and between people with and without dependents.
The Act requires public authorities to review their policies at intervals and, where necessary, conduct an equality impact assessment when considering changing a policy. This involves public consultation and can take considerable time. Private sector employers involved in tendering for public sector projects may need to provide information and confirmation that their employment practices follow appropriate guidelines and 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.
Gender pay gap reporting
Gender pay gap reporting does not currently apply in Northern Ireland, although some companies have included employees in Northern Ireland in their reports. Provisions in Section 19 of the Employment Act (Northern Ireland) 2016 dealing with this matter have still 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, require employers to publish information annually, showing whether gender pay disparities exist between employees, using prescribed factors and giving details of the method used to calculate the figures. Where gender pay differences are identified, an employer must publish an action plan to eliminate them and provide a copy to employees and any trade union recognised.
Regulations will establish what size of employer the requirements apply to, indicated by the number of employees and workers in the organisation. Other provisions may mirror those in Great Britain but could have a lower employee trigger rate, given the larger proportion of SMEs in Northern Ireland.
Unlike in Great Britain, the statistics must also be broken down by ethnicity and disability.
In Great Britain, the statutory disciplinary and grievance procedures were replaced in 2009 with a new Acas Code of Practice on disciplinary and grievance procedures. However, 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 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 increasing any award by up to 50%, if it considers it just and equitable to do so. Where the employee has failed to comply with the Code, any award can be reduced by up to 50%. In Great Britain, the award can be reduced by up to 25%.
Importantly, the Act retains for Northern Ireland in the long term the statutory three-step minimum disciplinary procedure. A dismissal which fails to follow this procedure will remain automatically unfair and a tribunal will remain able to increase any award by because of it by up to 50%. In Great Britain, the award can be increased by up to 25%.
The statutory dismissal and disciplinary procedure applies to most dismissals, 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 apply, are repealed. This should simplify matters, because the time limit for most claims 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 tribunal 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. It 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.
Fair Employment and Industrial Tribunals
Employment tribunals in Northern Ireland consist of the Fair Employment Tribunal and the Industrial Tribunals. Although for practical purposes, procedures in Northern Ireland and Great Britain are similar, there are differences in organisation. The Fair Employment Tribunal deals specifically with claims of religious/political discrimination, and has special panels for the appointment of tribunal members. Industrial Tribunals deal with other matters.
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. Tribunal procedures in Northern Ireland are governed by the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 and the Fair Employment Tribunal (Rules of Procedure) Regulations (Northern Ireland) 2005. Procedures are currently being reviewed in the hope of making the system in Northern Ireland more efficient and effective.
In Great Britain, any appeals go to the Employment Appeals Tribunal. There is no equivalent in Northern Ireland so appeals are made directly to the Northern Ireland Court of Appeal.
Tribunals in Northern Ireland do not automatically make use of witness statements, although they do in most cases, and witness statements are standard in discrimination cases.
Because of recent rulings from the Northern Ireland Court of Appeal, tribunals will seldom permit a preliminary hearing, even on issues such as jurisdiction, meaning the claim has to go to a full hearing.
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 futureThe 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 different cap on a weeks' pay for redundancy purposes applies in Northern Ireland (from April 2019, £525 in Great Britain, £547 in Norther Ireland) but it is reviewed each April.
Early conciliation (requiring claimants to notify Acas so conciliation may be attempted prior to lodging a tribunal claim) was introduced in Great Britain but not in Northern Ireland, although there are provisions for this in the Employment Act (Northern Ireland) 2016 that may be enacted in early 2020.
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 this is applicable.
There are additional powers for employment judges in Great Britain, including sitting alone in certain cases and having initial sifts to see if cases should be struck out early. These do not apply in Northern Ireland.
Employment tribunals in Great Britain can order employers that lose tribunal claims to pay a financial penalty on top of any award. These do not apply in Northern Ireland.
Most importantly, there were never any 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'. When writing a compromise agreement for an employee based in Northern Ireland, employers need to check the legislative references are correct and 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 Department of Employment and Learning in Northern Ireland has issued a consultation on employment changes, including changes in these areas.
The business transfer provisions in Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) cover the whole of the UK but, for technical reasons, the part dealing with service provision change does not extend to Northern Ireland and, instead, there are separate regulations – the Service Provision Change (Protection of Employment) Regulations (Northern Ireland) 2006 – covering this aspect. 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 main TUPE legislation refers to a group of employers situated in Great Britain.
Although Northern Ireland entered into joint consultations on the TUPE reforms at the same time as the rest of the UK, the changes which came into force in Great Britain under the Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 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. Therefore, Northern Ireland applies the 2006 Regulations as originally enacted (as well as the Northern Ireland-specific Service Provision Change Regulations 2006).
It’s 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 two Codes of Practice on workforce matters, one for public sector service contracts, the other covering contracts for local authorities. They were known as the two-tier workforce codes.
In essence, they stated that those employees moving from the public sector to private sector employers should be no worse off. However, they went further, in that they stated that any new employees brought in 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 contracts.
In England and Wales, the two codes and associated guidance on a two-tier workforce were withdrawn in 2010 and 2011. The status of the guidance in Northern Ireland has always been ambiguous. 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 on avoiding a two-tier workforce into a new Northern Ireland code which is working its way through the Northern Ireland Assembly.
In Northern Ireland, there's 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.
Public holidays and working time
The minimum number of holidays in Northern Ireland is in line with Great Britain, although this is being kept under review.
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 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.
The calculation of holiday pay under the working time rules has diverged in Northern Ireland, and this is reflected in case law. In the case Bear Scotland v Fulton (2014), the EAT for England, Wales and Scotland held that a gap of more than three months in a 'series of unlawful deductions' from holiday pay breaks the series, which means that where an employer could show a gap of three months between holiday periods, a claim could only go back as far as the end of that gap, effectively limiting historic liability on holiday pay claims. The decision was subsequently challenged by the Court of Appeal in Northern Ireland.
In Patterson v Castlereagh Borough Council (2014), a Northern Ireland industrial tribunal in 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’. It was thought the three-month gap rule from the Bear Scotland case would be followed in Northern Ireland cases, but divergence on the calculation of holiday pay, as well as the period of time covered by a claim, continues in Northern Ireland.
Firstly, the Deduction from Wages (Limitation) Regulations 2014 do not extend to Northern Ireland so there is no effective two-year backstop for holiday pay claims and unlawful deductions claims can extend for the entire period of the claim.
In a recent case, Chief Constable of the Police Service of Northern Ireland v Agnew (2019) NICA, the Northern Ireland Court of Appeal explicitly rejected the Bear Scotland approach on the grounds that it can ‘lead to arbitrary and unfair results’ and there was ‘nothing in the Employment Rights (Northern Ireland) Order 1996 (the equivalent of the Employment Rights Act 1996 in Great Britain) which expressly imposes a limit on the gaps between particular deductions making up a series’.
The Court of Appeal upheld the decision of the Industrial Tribunal and held that PSNI staff could claim back payments of holiday pay to reflect basic pay, overtime and allowances paid during a 'reference period' before the holiday. Therefore, given the 2014 Regulations do not apply in Northern Ireland and now the ruling of the Court of Appeal, PSNI staff affected by the case could be owed back payments stretching back over 20 years. This will have significant implications for employers in Northern Ireland.
Although NI Court of Appeal decisions are not binding in Great Britain, this case could ultimately affect employers there too as the PSNI, having been refused leave by the Court of Appeal in Northern Ireland, will appeal directly to the Supreme Court.
The Data Protection Act 2018 applies in Northern Ireland as well as in Great Britain and the Information Commissioner operates in both territories. The Information Tribunal sits in Northern Ireland as necessary.
When considering retention of data, employers should remember that in order to comply with the Equality Commission’s requirements for periodic review in Northern Ireland, 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.
Other employment areas
There are a number of other employment areas in Northern Ireland which employers should be aware of.
Shared parental leave has applied in Northern Ireland under the Work and Families (Northern Ireland) Act 2015 and associated regulations. The Act also:
- removed the qualifying period for adoption leave
- stipulated that statutory adoption pay will be paid at 90% of earnings for the first six weeks
- entitled primary adopters to paid time off work to attend up to five introductory meetings before a child is placed with them for adoption.
Secondary adopters also became 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 Act also extended the right to request flexible working to all employees with at least 26 weeks' continuous employment, and extended the right to take unpaid parental leave 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 reviewed 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.
Employee shareholder status was introduced on 1 September 2013 in Great Britain but has now been repealed. It was never enacted in Northern Ireland.
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: 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 (note that the 2014 amendments in Great Britain do not apply in Northern Ireland)
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
Northern Ireland: Employment Act (Northern Ireland) 2016
Great Britain: no equivalent
Northern Ireland: Data Protection Act 2018
Great Britain: Data Protection Act 2018
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 and previously by the Department for 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 for Employment and Learning in Northern Ireland
- Code of practice on industrial action ballots and notice to employers - Issued by Department for 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)
NI Business Info (Northern Ireland's online business advice service)
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.