The date of our Annual Conference is Wednesday 13 June 2018. The venue is Titanic Belfast.

This year’s Conference will cover a wide range of current and emerging employment related issues that have the greatest impact on employers and HR Professionals.

Our topics include:

  • Key employment law developments
  • Where we are with Brexit and the implications for business in Northern Ireland
  • GDPR: Legal compliance and why robust breach reporting procedures are vital for your organisation
  • Mental health In the workplace and the law
  • Sexual harassment – is your workforce protected?
  • Employment Tribunal claims – how to defend your organisation successfully
  • Job evaluation: Considerations and risks
  • Plus a roundup of significant cases from the Courts and Tribunals

To reserve your place please complete the attached booking form or contact John Gibson on 028 90 595053 or email

We really hope you can join us for this comprehensive update.



Northern Ireland: Promoting Good Race Relations in the Workplace Following Brexit

The Issues

Brexit was undoubtedly a political vote about migration and started a trend of thinking in terms of  “us” and “them.” Political rhetoric from politicians such as President Trump who wants to build a wall to keep the Mexicans out has increased this type of “us” and “them” thinking.  Tragic terrorist acts and threats have also resulted in an increase in hate crimes and hate speech.  All this has led to a false impression that some level of racial resentment/intolerance is acceptable.  For employers, this creates difficulties in maintaining neutrality in the workplace and taking reasonable steps to ensure that employees are not discriminated on racial grounds.  This article explores the position in Northern Ireland and looks at the legal perspective, before considering what can employers can do to promote good race relations.


Northern Ireland

Northern Ireland has only 0.1% of the total UK migrant workforce.  The 2011 census (figures of which are out of date but are the most up to date) stated that there were 81,453 people born outside the UK or the Irish Republic.  This represented 4.5% of the total Northern Ireland population of 1.8 million; of that 1.8% of the population believed that they belong to a minority ethnic group.


Migrant workers primarily live in Belfast, Dungannon, Craigavon, Newry and Mourne areas and predominantly come from Eastern European countries such as Slovakia, Lithuania and Poland.  Approximately 5% of the Northern Ireland workforce is comprised of migrant workers.  Statistics show that migrant workers tend to fill posts that are hard to fill (such as cleaning and agriculture jobs) and tend to be lower skilled and lower paid.  For employers in those sectors and geographical areas the impact of Brexit remains a real concern.


So does Northern Ireland have any race issues in the workplace?  According to the number of Tribunal Claims you may be led to think that there is not.  Since 2015 there have been 184 race discrimination cases lodged, 79 of which were in 2016.  This number is similar to the number of religious discrimination claims in that year.  However, these figures may misrepresent the real situation and that there is evidence that migrant workers are less likely to complain particularly about low level abuse.  Other factors, such as language barriers and lack of knowledge of how to lodge a claim, may be behind these numbers.


The Law

There are some differences between the race discrimination laws in Northern. Ireland and GB that are not explored in this article.  However unlawful race discrimination includes the familiar concepts of direct and indirect discrimination, harassment and victimisation.  For example it would be direct discrimination if a black employee complained about a manager’s conduct and a senior manager then commented erroneously that it was a race discrimination complaint.  As direct race discrimination cannot be justified motive is irrelevant.


Indirect discrimination could occur where a Polish person with little written or spoken English applied to be a cleaner, could do the job but was not shortlisted due to their lack of English.  Whilst indirect discrimination can be justified it is unlikely that in this case the requirement for written or spoken English could be shown to be a proportionate means of achieving a legitimate aim.


Examples of racial harassment would include racist jokes (French girl subject to ‘oh la la’ jokes) banter and insults (‘Go back home you foreigner’) or mimicking accents or the way a person speaks.


It would be victimisation if an employee raised a race discrimination complaint then applied for a more senior position but was not selected on grounds that the interviewer consciously or unconsciously took into account the fact the employee had raised a complaint.


Employer Liability

Employers are liable for anything their employee does in the course of their employment.  The definition of ‘in the course of the employment’ has been extended by case law.  Essentially, if there is a link back to the workplace then the employer may be liable regardless of whether the act was done with their knowledge or approval.  Importantly the offending employee can also be personally liable.  Compensation is joint and severable against any named Respondent and is also unlimited.  The employer does have a defence, if it took all reasonable steps to prevent the employee from doing that (discriminatory) act or from doing anything of that description.


Reasonable Steps Defence

The reasonable steps defence goes some way towards the employer maintaining good race relations in the workplace.  In order to succeed with the defence, employers must take reasonable steps before any discrimination has occurred and thereafter deal with the matter effectively once it has occurred.


To succeed with the defence, as a minimum, employers must not only have equal opportunities and anti-harassment and bullying policies, but also have:

  1. Put the policies into practice.
  2. Reviewed the policies as appropriate.
  3. Made all employees aware of the content of the policies and their implications.
  4. Trained managers/supervisors/employees in equal opportunities and harassment issues.
  5. Taken steps to deal effectively with complaints, including taking appropriate disciplinary action.


However, having policies and training is insufficient if it can be shown that managers turned a blind eye to racial harassment and banter in the workplace.


Maintaining good race relations

But good race relations is more than defending legal claims and there are sound business reasons for your business to fully support equal opportunities.  There is evidence to show that businesses who fully support equal opportunities have a more productive workforce, lower absentee figures, higher employee retention levels and higher staff morale.  This will all contribute to a workplace that is more productive.


Diversity and inclusiveness are currently key concepts in Human Resources.  It is recognised that a workforce can be diverse but not inclusive.  In order to be inclusive employees need to have a voice, feel valued and connected.  Whilst training is a vital step to creating a positive culture it is rarely enough on its own.  To be successful it needs to be led from the top down and senior leaders need to drive and support a culture that embraces differences.


Steps for your Organisation

Your organisation should consider its workforce composition and assess if any concerns have been raised through the Company’s processes e.g. exit interviews or appraisals.  Training should be refreshed in areas where it is required or where it is outdated.  Leaders should clearly demonstrate that they endorse equal opportunities.  Importantly, managers need to know how to respond to concerns raised both formally and informally as they tend to be the first recourse for workers.  In appropriate circumstances a good manager may be able to nip matters in the bud at an early stage to prevent issues escalating.  Your organisation should consider if it could successfully rely on the reasonable steps defence.  Being proactive to promote a more diverse and inclusive workplace, by gaining a better understanding of the cultures that exist in your organisation, will assist improving workplace relationships and is likely to contribute to increased productivity.


Impact of Brexit

Undoubtedly Brexit will have an effect on race discrimination.  Migration remains a central issue and it is unknown whether people will be able to move freely across the borders. This may lead to increased racial tension.  There is also some concern that there may be a roll back on equality laws.  This is complicated by the fact that equality law is devolved in Northern Ireland and we may see further areas of divergence in our laws from those in GB.  However it is clear from the Draft Programme for Government that equality and good relations are seen to be essential to ensuring a prosperous and thriving Northern Ireland

Update on Brexit Activity

The Association is continuing to work closely with Fergus McReynolds, Director of EU Affairs for EEF GB and EEF NI, as the UK prepares to exit the European Union.  Please find below a summary of the most recent events and some of EEF’s commentary.

Summary of Article 50 week

The letter from Prime Minister May fired the starting gun on two years of negotiations to agree a divorce deal which will set out the terms under which the UK leaves the EU and – we hope – a new partnership based on trade and close cooperation with our European partners. This marks a shift with geo political and generational implications, for both citizens and businesses.

While the mechanism is up and running this will in the end be a political deal between the nations’ leaders – and the politics is of course potentially toxic.

The actual time for negotiating may in reality be much shorter than two years. Any deal will need to be on the table for consideration by January 2019, leaving just over 12 months for the real negotiation, once you’ve taken into account elections in France and Germany and ratification by the European and UK parliaments, that’s all assuming those elections don’t throw up any big surprises or upsets.

So what does this mean for manufacturing?

Well the first message from the manufacturing sector is clear, no deal is not an option. This has been reiterated by ourselves and by our European partners in CEEMET, the EU wide manufacturing group, setting out the need for a Brexit deal that reduces the risk of economic shocks.

As we have set out in our Brexit Briefing on Trade with the EU, no deal would mean a significant disruption to trade between manufacturers in the EU and the UK, unlike a typical free trade-type negotiation where walking away simply means the continuation of the status quo with neither party losing out, this is not the case between the EU and the UK. Should the UK walk away with no preferential access to the EU or international markets in place, on day one of Brexit our sector would immediately find itself at a loss.

So what do we want to see from the negotiations?

EEF’s primary call is to agree a reasonable deal which allows for seamless trade ensuring that we avoid unnecessary tariff burdens and reduce the possibility of technical barriers to trade from administrative blocks to divergence in regulation. In order to deliver this we are firmly of the belief that a significant period of transition will be needed to deliver an orderly and smooth exit from the EU.

In addition, manufacturers will also need to employ and deploy people as freely as possible after Brexit, with employers in manufacturing companies needing ongoing access to workers with higher level and other technical skills from the EU and worldwide to maintain their ability to invest, grow and train in Britain. The EEF recommendations for a new model on migration are set out in our second Brexit Briefing.

Finally the government has published its white paper on the ‘Great Repeal Bill’ which seeks to address the regulatory uncertainty of Brexit. Our first primary call is for the adoption of the current legislative environment to ensure little or no disruption in regulation for businesses and continued trade with the EU. It is our view that in time, once the final deal on our future relationship has been agreed and allowed to bed in that we should work with Government to review our legislation to ensure it is fit for purpose. However we will still need to find a mechanism for UK and EU regulatory cooperation to allow for ongoing smooth trading relationships.

Where next?
This is just the start. Negotiations will probably be very public with all sides fighting a PR war to meet the perceived requirements of different audiences. One thing is clear however. The stakes are very high for industry in the UK and across the continent.  It will be important that decision makers are held to account, to ensure they are putting the needs of manufacturers at front and centre.

BREXIT:  What Next?

What next following the Supreme Court Decision?

On Tuesday 24 January 2017 the Supreme Court upheld an earlier High Court ruling that Article 50 (the mechanism through which the UK will commence the formal process of leaving EU) cannot lawfully be triggered without an Act of Parliament.

So what happens next?

Brexit so far:

As Members will be aware on 24 June 2016, the result of the EU referendum was declared with a majority of voters deciding that the UK should leave the EU. Following the resignation of David Cameron, the new Prime Minister Teresa May announced that she would trigger Article 50 before the end of March 2017.

The government’s proposal for triggering Article 50 was challenged by judicial review in proceedings before the High Court of England and Wales (Miller and Santos) and the High Court of Justice in Northern Ireland (R (McCord and others) v HM Government and others.

The key findings arising from those proceedings were:

The Supreme Court considered appeals in respect of both of these points and held:

  1. An Act of Parliament is required before Article 50 can be lawfully triggered

    The Supreme Court ruled by a majority of eight Justices to three that MPs and peers must give their consent via an Act of Parliament before the government can trigger Article 50 and formally initiate Brexit.

    In reaching its Decision the majority of Justices found that whenever EU institutions make new laws, those new laws become part of UK law. Therefore, EU law is an independent source of UK law until Parliament decides otherwise. The withdrawal of the UK from EU Treaties will result in a source of UK law being cut off and certain rights enjoyed by UK citizens will change. In light of this the Supreme Court found that the government cannot trigger Article 50 without Parliament authorising that course.

  2. Northern Ireland challenge: There is no requirement to consult the devolved assemblies

    The Supreme Court Justices reached a unanimous decision that the government is not legally obliged to separately consult the Scottish Parliament and Welsh and Northern Ireland assemblies on triggering Article 50.

    Members will be aware that Northern Ireland voted to remain in the EU referendum by a majority of 56% to 44%.

    There were two legal challenges from Northern Ireland to the UK leaving the EU – the first, brought by a cross-party group of Stormont politicians, argued that the consent of the assembly was needed as well as legislation in Westminster. The second, brought by victims’ campaigner Raymond McCord, argued Brexit was a constitutional change and the 1998 Good Friday Agreement meant Westminster had given sovereignty of Northern Ireland over to the people of Northern Ireland.

    However, the Supreme Court Justices said the peace deal covered Northern Ireland’s place in the UK, not its place in the EU. They found that the devolution acts “were passed by parliament on the assumption that the UK would be a member of the EU, but they do not require the UK to remain a member” and that “the devolved legislatures do not have a veto on the UK’s decision to withdraw from the EU”.

So what happens next?

On Thursday 26 January 2017 the government published its bill to trigger Article 50 and this will now be debated in the House of Commons. Whilst a number of MPs have stated they will vote against the bill, it is widely expected that it will pass, leaving the government free to trigger Article 50. Many consider the requirement to obtain the consent of Parliament a “technicality” as it is not envisaged that the bill will be defeated, a number of amendments to the bill have already been tabled.

What is the likely impact on the UK and Northern Ireland in particular?

Clearly the outcome of Brexit negotiations will have major ramifications for the UK across the board, and in particular for Northern Ireland which is the only part of the UK that shares a land border with the EU.

From a pure HR perspective, the future of the free movement of labour is high up there on the negotiating priority list. Will UK employers still be able to recruit EU nationals? What about EU nationals already working in the UK? There is also the question of UK nationals working in the EU.

The specific implications for Northern Ireland, and the border, are as yet unknown. The customs union currently allows tariff and paperwork-free trade between the UK and the Republic of Ireland. However the Prime Minister has stated, “full membership of the customs union prevents us from negotiating our own comprehensive trade deals” so she will now seek to negotiate a new customs deal with the EU, which would allow tariff-free trade to continue.

In her recent speech the Prime Minister set out a number of further negotiating objectives for Brexit:

Whilst the Prime Minister also made a direct reference to maintaining the Common Travel Area with Ireland and an insistence that there should not be a hard border, many query how this can be achieved and there remains the possibility that it could lead to the return of some form of customs checks along the Irish border.

In the meantime, Brexit uncertainty is also likely to slow NI’s economic growth in 2016 and 2017 – the most recent Quarterly Sectoral Forecast report published by Danske Bank, suggests that Northern Ireland’s economy will grow by 1% this year and 0.5% in 2017. This has been revised down from the previous report, in which growth of 1.6% had been expected for this year and 1.9% 2017.

Whilst the future shape of UK and EU immigration rules and trade agreements remains under discussion EEFNI will continue to closely monitor the situation and make representations on our Members’ behalf. We will be discussing Brexit and its implications at our Annual Review Conference on 7 June 2017.

Brexit – What does it mean for your business?

The UK’s vote to leave the European Union (EU) continues to be a hot topic both for politicians and businesses. There are still many uncertainties including when the UK will trigger Article 50 commencing the formal 2 year period to exit the EU, and terms on which it will leave. No Member State has ever left the EU and so the process of withdrawal is untested. Until the shape of UK’s exit has been determined, the direct legal implications for UK businesses will remain unclear.

We will be holding a Briefing Session for Members about the impact of the vote on Thursday 10 November 2016 from 10.00am-12.00pm at our office in Belfast.

This seminar is free to Members and will consider the possible implications of Brexit for business and in particular to Human Resources departments. The seminar will look at how best to equip your business for a post-Brexit era.

Anyone interested should contact John Gibson by email: or telephone: 02890 595053. Places are limited to 2 places per Member and will be allocated on a first-come basis.

UK votes to leave the EU – What happens now?

On 24 June 2016, the EU referendum result was announced, with a majority of voters deciding that the UK should leave the EU. Once the government notifies the European Council that the UK has decided to leave the EU, the two-year period for the negotiation for exit under Article 50 of the Treaty of the European Union can start.

No European Union Member State has ever left the EU so the process of withdrawal is untested, and until the shape of the UK’s exit has been determined, the direct legal implications for UK businesses are unclear.

Brexit Victory

The Brexit victory sent immediate economic shockwaves through global markets. There is uncertainty over what will happen when the UK leaves the EU because it has to make new trade agreements with the rest of the world. Supporters of Brexit argue that EU countries have every incentive keep trading with the UK, which is a large importer of goods and services. But the Remain camp worries that foreign companies will be less likely to invest here and could relocate their headquarters if Britain loses access to the EU’s single market.

The impact of Brexit on UK employment law will depend, to a large extent, on the specific arrangements put in place to formalise the UK’s exit. If, for example, the UK follows the Norwegian model and joins the EEA, the UK would still be subject to most aspects of European employment law. The Swiss model, involving access to the single market and many bilateral agreements, could also restrict the sovereignty of employment law due to the need to satisfy trading partners.

What should employers do now?

At this stage the referendum outcome has no immediate legal impact and therefore employers don’t have to do anything now. The vote itself does not trigger any employment law changes and no changes are expected in the short term as the process via which the UK leaves the EU will take a number of years. At the end of the negotiations the withdrawal agreement will need to be ratified by both sides which again could be a lengthy process. Until we leave, all EU legislation (including workers’ free movement rights) will continue to apply.

What are the possible long term implications?

It is likely to take a while for the government to clarify its intentions and so employers will need to play things by ear.


The free movement of people is one of the four economic freedoms of the EU.

Following Brexit, EU citizens will no longer have the automatic right to reside and work in the UK, and vice versa unless they have already obtained permanent residency. In reality however freedom of movement is likely to be an integral part of the negotiations around the post-Brexit relationship between the UK and EU. The UK is therefore unlikely to take any immediate steps to curtail EU nationals’ freedom of movement rights.

At this stage also nothing is expected to change from an immigration perspective for workers already in the UK.

If steps are taken to restrict EU nationals entering the UK employers may want consider taking steps such as bringing workers into the UK pre-emptively or taking steps to secure their immigration status before any restrictions take effect. Whether or not such restrictions will be put in place is questionable as the UK may not be able to negotiate a trade agreement with the EU without agreeing to the free movement of persons.

Employment Law

A significant proportion of the UK’s employment law comes from the EU, including discrimination rights, collective consultation obligations, transfer of undertakings regulations, family leave, working time regulations and protection of agency workers.

In theory post-Brexit the UK government could repeal all of this. However this is unlikely; any change is likely to be gradual and piecemeal and it is far more probable that EU law will continue to exercise a significant influence even after we leave for a number of reasons:

On leaving the EU it will not automatically mean that all EU derived law simply disappears. Provisions giving effect to EU law are enshrined in UK primary legislation including for example, our domestic anti-discrimination legislation. A government no longer obliged to follow the EU line may be minded to repeal or, more likely, amend unpopular Regulations to create a more business-friendly legislative environment.

Areas in which there is unlikely to be change

The level of any national minimum wage, domestic unfair dismissal protections, and domestic rules on strikes will be unaffected as these are outside the scope of EU law.

It also seems unlikely the UK will repeal or significantly change the Data Protection Act 1995 as if UK businesses want to continue to operate in the EU they will have to transfer data between the UK and EU member states and this will require adequate protections equivalent to the current ones.

Discrimination law & compensation limits

Whilst repeal of anti-discrimination law is unlikely, some commentators have suggested that those forms of discrimination which were only implemented because of EU law and which enjoy less political consensus, for example age discrimination and fixed term/part time worker protections, may be targets for change. A cap could also be imposed on discrimination compensation similar to that for unfair dismissal; this is currently not possible under EU law.

Working Time Regulations

Whilst the WTR have been unpopular with successive UK governments, a wholesale repeal of the Regulations is unlikely. There are however aspects of the right to paid holiday and other rights under the WTR that the government may want to amend. Many businesses would be keen to see the repeal of the maximum 48-hour working week. The right of workers on long-term sick leave to continue to accrue and either take or carry over paid annual leave may also be ripe for change. A return to holiday pay based on basic contractual pay (rather than the current hot topic of holiday pay calculations needing to include regular overtime and/or commission payments) is thought likely.


Although many businesses would like to see the back of TUPE, it seems more likely that the government would make small changes to it to make it more business friendly. Change could include making it easier to harmonise terms following a TUPE transfer, and relaxing the formality surrounding the information and consultation obligations.

Agency Workers Directive

The most obvious candidate for complete revocation if the Agency Workers Regulations which are complex and unpopular with businesses.


Overall it seems unlikely that UK employment law will be transformed in a significant way, particularly in the short term. Employers should therefore continue to follow existing rules on employment law.

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