Updated Comparative Table of employment law developments across Great Britain, Northern Ireland and the Republic of Ireland

Keeping track of developments across the broad spectrum of employment law can be a challenge, particularly across three jurisdictions. Fear not, however, as we’ve updated our Comparative Table again, in conjunction with Legal Island, to reflect recent developments over the last six months across Great Britain, Northern Ireland and the Republic of Ireland.

The Northern Ireland Assembly hasn’t been restored following the elections in May 2022. We’re therefore seeing increasing divergence between employment laws in Great Britain and Northern Ireland, meaning that UK employers with operations in Northern Ireland should be increasingly mindful of the differences.

The Comparative Table is split by subject area, with an index at the front. For ease of comparison, the developments are set out under each subject. The table also includes links to relevant legislation and other documents to help you understand the differences. Important developments from previous versions of the table have been retained.

Key recent employment law developments across Great Britain, Northern Ireland and the Republic of Ireland

Taking a bird’s eye view over the Comparative Table, some key developments across Great Britain (GB), Northern Ireland (NI) and the Republic of Ireland (ROI) over the last six months are as follows:

Historic holiday pay claims

• One of the biggest cases of 2023 was the long-awaited Supreme Court decision in the case of Chief Constable of the Police Service of Northern Ireland v Agnew, which hit the headlines in October 2023.

• This decision, which applies across the UK, put holiday pay back in the spotlight and potentially increases the financial exposure for employers who have not calculated holiday pay correctly. It is likely to cost the Police Service of Northern Ireland £30-40 million as back pay for holiday pay claims and is likely to have significant implications for employers in NI and GB.

• Employers in GB are in a better position, however, because there’s a two-year limit on how far back holiday pay claims can go. This isn’t in place in NI meaning that holiday pay liability can potentially date back to 1998 when the Working Time Regulations were introduced, or back to the date on which employees commenced employment, whichever is later. Planned reforms in GB also clarify aspects of holiday pay and entitlement for GB employers, which are described below.

What’s happening with retained EU law in the UK?

Some of the most important developments over the last six months relate to the arrangements that have been made to increase the pace of repealing, restating or replacing EU laws which were retained by the UK when it exited the EU on 31 December 2020.

• The UK government’s controversial Retained EU Law (Revocation and Reform) Act finally passed after being watered down in the House of Lords where the ‘sunset clause’ (which would have automatically deleted EU-based laws) was removed. Effectively, the proposed ‘bonfire’ of EU laws became a ‘campfire’ of EU laws.

• As the Act ends the “supremacy” and “general principles” of EU law on 31 December 2023, the government has recently taken steps to write many existing EU laws into new regulations. Otherwise, these EU laws would have disappeared from 1 January 2024 (when supremacy of EU law ends). Specifically, new GB draft regulations are in place relating to what payments should be included in holiday pay, rules about carrying forward holiday and rules about carrying forward accrued holiday missed due to sickness or maternity leave.

• These holiday changes don’t apply in NI. This leaves the position on holiday pay more uncertain in NI from 1 January 2024 as the EU case law in this area will no longer have “supremacy” and general principles of EU law will no longer apply.

• In GB, new draft regulations amending the Equality Act 2010 are also in place to ensure that discrimination protections derived from EU law are preserved after Brexit. Again, these changes don’t apply in NI. However, given the special arrangements put in place in NI after Brexit under the Windsor Framework, there should be no diminution of EU equality and anti-discrimination legislation in place in NI and general principles, such as direct effect of EU law, will also continue to apply in this area.

• In GB, the government is also starting to use its new powers to reform EU laws. For part-year or irregular hours workers this includes rolled-up holiday pay being allowed and a new holiday accrual system. There are also modest reforms to TUPE consultation obligations and record keeping obligations. These changes do not apply in NI – for example, rolled-up holiday pay remains unlawful in NI.

Diversity, equity and inclusion

• In GB, a new law on sexual harassment has been passed, which is to come into force in October 2024. This sets out a new duty on employers to take “reasonable steps” to prevent sexual harassment of employees in the course of their employment (requiring proactive measures).

• In GB, a series of reforms have also been passed by way of private members bills, including new rights to carer’s leave and neonatal leave, the introduction of new flexible working rights and the extension of redundancy protection to pregnant employees and those who have returned from family leave. However, new regulations will need to be introduced before employers know the full details and any of the legislation can take effect from next year.

• The carers and neonatal leave provisions are intended to extend to NI. However, as employment law is devolved to NI, it will be up to the NI Assembly to decide whether similar provisions should apply in NI. The Assembly is not sitting and there are currently no plans for similar provisions.

• In ROI, the entitlement under the Work Life Balance and Miscellaneous Provisions Act 2023 to five days’ paid leave for employees who are victims of domestic violence commenced on 27 November 2023.

• The provisions of the Work Life Balance legislation entitling employees in ROI to request flexible and remote working arrangements were expected to be commenced by now, but this and a code of practice outlining practical guidance for employers on how to deal with these requests, is still awaited.

• Turning to pay, the Pay Transparency Directive will create new gender pay gap reporting obligations throughout the EU and influence practice more widely. We’ve answered the key questions and explained how Irish legislation will need to adapt.

Employment status and predictable terms

Employment status remains a hot topic, particularly for the gig economy.

• After several years of litigation, the UK Supreme Court unanimously ruled that Deliveroo riders are not in an “employment relationship” for the purposes of European human rights law and cannot proceed with an application for recognition of their trade union.

• In contrast, the Supreme Court in ROI, in its decision published on 20 October 2023, overturned the majority decision of the Court of Appeal and found that Domino’s delivery drivers were employees, not independent contractors, for tax purposes.

• In GB, the Workers (Predictable Terms and Conditions) Act, received royal assent in September. This new law will give certain workers a new statutory right to request a predictable working pattern and is expected to take effect next year. Similar requirements were set out in the EU Directive on Transparent and Predictable Working Conditions and our interactive map monitors how this has been implemented across the EU.

Strikes and industrial action

Strikes across a variety of industries have continued to dominate headlines and cause disruption.

• In GB the government was successful in passing controversial legislation to introduce minimum service levels in public services, but the consultation process and regulations will take some time to work through, and the legislation is likely to be challenged through the courts.

• There was much less success for the government’s efforts to allow agency workers to provide cover during strikes. A High Court challenge saw the new legislation quashed and the previous prohibition on agency workers covering strikes reinstated. The government has now launched a new consultation on the proposal which will be open until January 2024 and can be seen here.

• In NI, there are no plans to reform law on either trade unions or industrial action.

Looking ahead to 2024

• A Labour party general election victory looks like a probability. The party is promising reforms to the employment landscape of a greater magnitude than, arguably, any time in the last 40 years.

• Speaking at the TUC annual conference in September 2023, Angela Rayner, Labour’s deputy leader, also promised that Labour would introduce an Employment Bill within the first 100 days. This is part of a promised “New Deal for Working People”.

• To keep you ahead of the curve, we’ve written about Ms Rayner’s speech and some of the party’s wide-ranging proposed reforms to workplace rights. Headline proposals include single worker status, day one basic rights, a ban on zero hours contracts, strengthened trade union rights including a right of entry to workplaces, further strengthening of harassment laws and introduction of ethnicity and disability pay gap reporting. It’s unlikely we’ll see any of this happen in 2024, but we are likely to see manifestos.

You can read about these developments and all other key developments across GB, NI and ROI on the “insights and news” page of our website. We aim to cover the practical impact of the developments and what you may need to do differently.

With our team of 180 employment and immigration lawyers across GB, NI and ROI, which is consistently top ranked by independent legal directories, Chambers and Legal 500, we’re on hand to assist with any employment queries you have.