Opening Lecture for Msc HRM Students at the University of Ulster

Opening Lecture for MSc HRM students at the University of Ulster

Scott Alexander

Head of Learning & Development

Legal-Island

22 September 2014

Synopsis

There have been a number of big developments or trends in HR in Northern Ireland over the last 40-50 years and I’d like to deal with the following, non-exhaustive list:

1. The proliferation of individual employment rights, often derived from the EU
2. The extension of equality rights to cover a wide range of social characteristics
3. The reduction in collective bargaining and powers of trade unions
4. The pivotal role of HR in reducing religious and political violence and intolerance in The Troubles
5. The divergence between NI employment laws and GB employment laws since the Good Friday / Belfast Agreement and the Northern Ireland Act 1998
6. Developments in HR careers and opportunities to make a difference to NI workplaces and NI society

1. The proliferation of individual employment rights, often derived from the EU

One of the great resources available to students of NI employment law is the Labour Relations Agency’s website list of Northern Ireland employment legislation:

The website has notes on legislation going back to the pre-partition 1871Trade Union Act, has links to most of the legislation available online and has summaries and links to all NI employment-related legislation from 1996 (when the main employment rights were consolidated under the Employment Rights (NI) Order 1996 (the 1996 Order).

The first ‘proper’ piece of individual employment law in NI was the Contracts and Redundancy Payments Act (NI) 1965 (CERPA), which was essentially a copied version of the GB 1963 Act. It introduced the rights to minimum and maximum statutory notice pay upon dismissal; the right to a statutory redundancy payment if an employee’s job were made redundant; and the right to written particulars of employment.

Prior to 1965 in NI, employment law had been almost entirely a matter of individual contract law, argued via the courts, or collective bargaining between trade unions and employers.

It was not until 1976 that the statutory right to not be unfairly dismissed was introduced in NI, although it had initially been introduced in GB in 1971.

The Industrial Relations (Northern Ireland) Order and The Industrial Relations (No. 2) (Northern Ireland) Order were the fore-runners of most of the domestic employment legislation we know now. They consolidated the rights in CERPA and also brought in unfair dismissal; remedies for unfair dismissal; insolvency; written statement of reasons for dismissal; guarantee payments if laid off work; payment for suspension from work on medical grounds; maternity rights; protection for trade union membership and activities; time off work; insolvency payments; itemised pay statement and more.

Almost all of the other rights, with the exception of the National Minimum Wage and Fair Employment Legislation on Religious and Political grounds have derived from Europe. Indeed, the 1996 Order (equivalent of the Employment Rights Act 1996 in GB) consolidated all of the pre-96 individual employment rights into one piece of legislation, with the notable exceptions of equality and TUPE protections which emanated from Europe.

The Impact of the European Union

Let’s not forget the impact of Europe on employment law. A brief chronology of some important Directives would be useful too:

* Directive 2000/78/EC establishes a general framework for equal treatment in employment and occupation, which forbids discrimination based on religion, belief, disability, age and sexual orientation.

* Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin – general principle of anti-discrimination goes beyond directive above.

* Directive 75/117/EC – principle of equal pay between men and women. This Directive specifies that an employer is not allowed to pay persons doing the same work or work of equal value differently due to their sex.

* Directive 76/207/EC - on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and working conditions.

* Directive 2003/88/EC of the European Parliament and of the Council of 4November 2003 concerning certain aspects of the organisation of working time. Directive 2003/88/EC consolidates the original Working Time Directive 93/104/EC of 23 November 1993 and its amending Directive 2000/34/EC of 22 June 2000. The Working Time Directive is intended to ensure that workers are protected against adverse effects on their health and safety that can be caused by excessively long working hours, inadequate rest or disruptive working patterns.

* Directive 1999/70/EC – on fixed term work - The Directive aims to improve the quality of fixed-term work by ensuring the application of the principle of non-discrimination, and to prevent abuse arising from the use of successive fixed-term employment contracts.

* Directive 97/81/EC – on part time work. The directive states that part-time workers shall not be treated in a less favourable manner than comparable full-time workers solely because they work part-time, unless different treatment is justified on objective grounds.

* Directive 91/533/EEC – employment contracts. This directive concerns an employer's obligation to inform employees of the conditions applicable to the contract or employment relationship.

* Directive 92/85/EEC of 19 October 1992 concerns the implementation of measures to encourage improvements in the health and safety of pregnant workers, women workers who have recently given birth and women who are breast-feeding.

* Directive 96/34/EEC – parental leave – directive gives equal rights to men and women for parental leave on the grounds of birth or adoption leave.

* Directive 2001/23/EC - relating to the safeguarding of employees' rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses.

* Directive 98/59/EC – collective redundancies and the right for employee representatives to be consulted in good time to minimise the impact of redundancies.

ECJ / CJEU / ECHR Case Law

Directives bring similar laws throughout Member States of the EU and EEA. Directives usually allow for derogations – justified get-out clauses – for Member States. This means that there is not always uniformity amongst Member States but there will be a general application of the main requirements.

It also means that the Court of Justice of the EU, which is the highest court in respect of EU laws, has been called on many times to interpret how those laws have been implemented in Member States – has the UK, for example, complied with the requirements of EU law when transposing EU Directives into domestic regulations? Often, the answer is ‘no’ and these decisions, which are generally binding on domestic courts that refer questions to the CJEU.

Note also that Northern Ireland, although it has had devolved powers over employment laws from the Northern Ireland Act, is not a separate jurisdiction in relation to the EU. It is a part of the MemberState of the UK and must meet its obligations to the EU as part of that jurisdiction. Although NI may produce Orders and the UK may produce Acts, the wording in relation to the transposition of Directive requirements will be the same for NI and GB legislation.

Some EU laws are deemed more important than others. Health and Safety laws, for example, often come with limited or no derogations. Some EU laws are passed as Regulations, rather than Directives, and do not allow Member States to opt-out of requirements. Planned changes to data protection rules, another EU-wide area of law, will be implemented in this way.

One huge area of EU-derived law that has impacted throughout the UK and elsewhere in Europe is organisation of working time. There is a huge amount of case law that originally emanated from Spain, Germany and the UK in particular that has found that annual leave is a fundamental right, so much so that it cannot be removed by sickness or employers’ particular leave years.

Recent case law has looked at whether holiday pay should include casual / non-contractual overtime, bonuses, commission; whether people who fall ill during holidays can claim holidays back; whether sick employees unable to take leave can transfer it to the following leave year. The list seems endless.

The European Convention on Human Rights (ECHR) has also had a big impact on employment since the Labour Government of the 1990s signed up to its provisions. Although much of the ECHR cases have involved criminal proceedings and the right to a fair trial or to not be tortured, it is often cited in cases involving religious beliefs or the right to a family life or of free assembly. The ECHR hasn’t had the same impact in employment as the EU Directives but it is still an important element in the development of workplace laws.

Notwithstanding the acknowledged place of collective bargaining / consultation rights of trade unions under EU laws, the reduction in trade union powers via domestic legislation, coupled with the introduction of equality and other laws to comply with EU Directives etc, has seen a massive proliferation of individual employment rights and a concomitant reduction in collective bargaining and collectively agreed contractual rights.

1. The extension of equality rights to cover a wide range of social characteristics

Take a look at the name and date of the first piece of equality legislation in the workforce in GB/NI that outlawed harassment on the grounds of gender and race.

Gender

NI

The Sex Discrimination (Northern Ireland) Order 1976

GB

Sex Discrimination Act 1975

Race

NI

The Race Relations (Northern Ireland) Order 1997

GB

Race Relations Act 1968

You can see how far NI was behind GB in protecting people from race discrimination – almost 20 years after the first piece of GB legislation. It reflects the ethnic and political make-up and priorities of NI society, where religious and political discrimination was deemed much more important, for obvious reasons.

The Fair Employment Act 1976 (now replaced by the Fair Employment and Treatment (NI) Order 1998) gave protections against detriments on grounds of a person’s religious belief or political opinion. Religious belief covered non-Christian faiths and atheism and political beliefs has been shown via case law to include issues outside the orange/green politics most associated with Northern Ireland.

The first pieces of legislation (or case law) that outlawed pregnancy dismissals in GB/NI were:

GB

Sex Discrimination Act 1975

NI

The Sex Discrimination (Northern Ireland) Order 1976

NOTE: The provisions of the Equal Pay Act (Northern Ireland) 1970 were introduced in 1975.

It was not until this time that Banks in Northern Ireland finally repealed the practice/understanding that once a single woman became engaged to be married she had to resign. Female civil servants and other public servants (primary teachers from 1958 were excluded from the so-called "marriage bar") had to resign from their jobs when they got married, on the grounds that they were occupying a job that should go to a man. Banks operated a similar policy.

How it Changed

The marriage bar in the public service was removed in July 1973, on foot of the report of the first Commission on the Status of Women. In 1977, the Employment Equality Act prohibited discrimination on the grounds of gender or marital status in almost all areas of employment.

1. The Reduction in Collective Bargaining and Powers of Trade Unions

In some workplaces trade unions are still important and work closely with employers but union density and membership has dropped since its height in the 1970s.

Government statistics show that, “Around 6.5 million employees in the UK were trade union members in 2013. The level of overall union members was broadly unchanged from 2012, with a reduction of only 6,000 over the year (a 0.1 per cent decline), but well below the peak of over 13 million in 1979.”

The same government document states, “Employees in Northern Ireland, Scotland and Wales are more likely to be trade union members than the UK as a whole ...”

Indeed, NI has the highest level of union density of any UK region but it’s still well under 40% of the workforce. Trade union membership is far higher in large organisations and in the public sector. NI’s economy is largely made up of small to medium sized organisations that are not unionised and a large public sector, which does recognise unions for collective bargaining purposes. Most of the (relatively few) large private organisations in NI are unionised. 45% of NI employees are covered by collective bargaining machinery.

The last annual report available at the time of writing from the LRA (2012-13) showed 13 collective disputes had been received for conciliation by the LRA in that year, down from 27 the previous year. In the 1970s and into the 1980s, the LRA could expect to be involved in helping to settle some 150-200 collective workplace disputes.

So what’s happened? Simple – the powers of trade unions have been truncated by government and they are now less effective than they used to be. There is less of an incentive from a monetary point of view to join trade unions because they cannot impact so well on wage packets.

The first employment-related legislation on the LRA website is the Trade Union Act of 1871. Trade unions gained immunity from prosecution during the 20th Century where they encouraged members to take part in industrial action. They were also permitted to create ‘closed shops’, where only union members could be employed by particular employers. The trade union representatives bargained on behalf of members and had exclusive bargaining rights over the entire workforce. Unions could take action against members who did not support the agreed industrial action. Those positions changed under the Conservative Government of the 1980s.

Trade unions still have immunity in tort but now it’s only if there has been a valid and lawful ballot and the union gives the minimum amount of notice to the employer. Secondary action, in support of workers engaged by another employer, has been outlawed. It was common for miners to support dock workers or transport workers and for different industrial unions to refuse to cross picket lines. Actions like that nowadays would lead to the unions being taken to court and their funds sequestrated.

Closed shops, either before or after employment, are now banned. If people cannot be compelled to join a trade union, there is likely to be a drop-off in membership.

Ballots are complicated and there are stringent rules on membership lists being up to date. Voting must be by secret ballot and postal. Lots of people just don’t bother filling them in. The technological age hasn’t been extended to trade union ballots on industrial action.

Action against members who cross picket lines or refuse to take part in industrial action is unlawful – unions will be fined and the individuals will receive compensation if the union or its members take action against ‘scabs’ or ‘blacklegs’. Unions know from the off that industrial action will not be 100% supported, even if they can organise a ballot in favour. Many members, as well as non-members will simply ignore the call to action.

HR and employers know this as well. Many have used the 1980s legislation to take the unions to court and the curbs on unions were not repealed by the Labour government of the 1990s. Unions are weaker and many employers pay lip service to consultation and negotiation with the unions, safe in the knowledge that industrial action is hard for the unions to organise and maintain.

Another change has had an impact in many workplaces in relation to consultation and collective bargaining – new technology. It is easier now for trade unions to communicate with members but it is also easier for employers to communicate directly with employees and bypass the unions, if that is what they wish to do.

As the importance of unions and collective bargaining has diminished, so have the skills associated with the cut and thrust of negotiations. HR’s role has changed; the skill set require to do the job properly has changed. HR now focuses on engagement, inclusiveness, coaching, and delegation of function.

Strangely enough, many of these ‘new’ skills were developed in Northern Ireland in the 1970s and 1980s, when HR was forced to work with trade unions during The Troubles in order to minimise the impact of political uncertainty in the workplace.

1. The pivotal role of HR in reducing religious and political violence and intolerance in The Troubles

We have noted that the date the Fair Employment Act in NI first outlawed harassment on grounds of religious discrimination in NI was 1976 and what was going on politically at the time? What I want to do here is point to the workplace ideal of perfect relationships and contrast this with what was going on outside the factory gates.

The Fair Employment (Northern Ireland) Act 1976 was considered at the time to be groundbreaking anti-discrimination legislation on the basis of religious belief or political opinion. At this time politically Northern Ireland was in the height of the troubles – many were being killed on both sides of the divide. This was also the year that the blanket protest began in Long Kesh/Maze prison in protest at the end of special category status – a very contentious era of the troubles.