Law Centre NI
Employment Rights Bulletin
May 2022
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Welcome to our Employment Rights Bulletin with news, updates and case studies from the Employment Team at Law Centre NI.
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New employment solicitors join Law Centre NI
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We are delighted to announce the recent appointment of three employment solicitors to the Law Centre team.
Susan Kelly and Frederick Reilly joined the organisation in December 2021, followed by Marie-Claire Logue who joined in January 2022.
The employment team will be advising on the full spectrum of employment law issues for individuals. Specialist assistance is provided in resolving matters and representation can be provided at tribunal in accordance with the strategic objectives of the organisation.
You can contact our employment advice line to speak with a member of the team on 028 9024 4401. The advice line is open Monday to Friday from 9.30am - 1.00pm.
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Legislative Update
Introduction of Statutory Parental Bereavement Leave and Pay in Northern Ireland
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Eligible employees in Northern Ireland are now entitled to two weeks' paid leave following the death of a child under 18 or a stillbirth. The Statutory Parental Bereavement Pay (General) Regulations (Northern Ireland) 2022 came into effect on 6 April 2022.
The legislation completed the final stages of its progress through the Northern Ireland Assembly before the forthcoming elections in May.
Following the loss of a child under 18, eligible parents are now entitled to two weeks’ parental bereavement leave. This will be a “day one” employment right.
Entitlement to parental bereavement pay is engaged for employees with at least 26 weeks’ continuous service at the time of their child’s death. Employees have to meet a minimum earnings threshold in this respect. This will be set by the government in each tax year. Currently, Statutory Parental Bereavement Pay will be at the rate of £156.66 per week, or 90% of the parent’s average weekly earnings, whichever is the lower amount.
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As statutory parental leave and pay will become a statutory right, employees will be also protected from dismissal and detriment due to the exercise of this entitlement.
In addition to the above changes, following public consultation, legislative provisions will also be introduced for parents who suffer a miscarriage. Northern Ireland is therefore set to become the first jurisdiction in Europe to legislate for miscarriage leave and pay.
Law Centre NI welcomes this legislative change by the Northern Ireland Assembly. Parental bereavement is one of the most tragic experiences an individual can suffer. It is fundamental that those in employment are afforded as much support as possible during such a sensitive period. It is crucial that employees are cognisant of these rights following their implementation in Northern Ireland.
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Read about our client 'Bill' and his story
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We were contacted in mid-December by a multi-disciplinary team (MDT) social worker based in a GP practice regarding a patient "Bill". Bill has a diagnosis of anxiety with depression, as well as stress at work and stress-related problems.
An employment tribunal was cited by Bill as the main source of stress for him. His spouse was undergoing cancer treatment and he was naturally preoccupied with that fact and its attendant fears.
Bill described being confused and frightened by documentation being received in the post which related to the tribunal process. He had required learning support as a school child and was unable to understand the legal terminology used in the correspondence. In addition, he had missed a number of hearings due to difficulties in focusing and it was at this point that Bill was referred to the MDT social worker by the mental health practitioner at the medical practice. Bill had expressed suicidal thoughts and reported that the combination of his partner’s health and the stress, worry and fear over the tribunal were impacting on his mental health. He was financially unable to employ a legal professional to present the case as he is benefits dependent.
Over the weeks following the initial contact with Law Centre NI, the guidance provided to the social worker by the Law Centre staff member was described as "invaluable". Bill was able to reach a decision to withdraw from the legal process, resulting in an almost immediate reduction in his stress and anxiety levels.
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'Using the law to transform people's lives'
Law Centre NI Impact Report 2020-2021
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The demand for our employment advice service surged during the pandemic as our team dealt with an unprecedented level of enquiries.
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You can read about the work of our employment team and how it helps in our 2020-2021 Impact Report "Using the law to transform people's lives".
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The employment team has been pleased to assist many individuals in the last number of weeks with the successful resolution of their employment issues.
Please note, due to confidentiality provisions and the sensitive nature of a number of cases, client names have been anonymised.
Our client 'Michael'
“Personally, I have found the service I received from the employment solicitor, Freddy, to be invaluable and professional. My positive experience from Law Centre NI has provided reassurance and understanding of the legal terminology from offering clear advice, guidance and support to my employment concerns. It has been hugely helpful and I am grateful for the service I have received. Thank you.”
Our client 'Nicola'
"A much needed resource for local communities in Belfast and Northern Ireland as this is one of the only free legal support groups within Belfast that I could find after an internet search. They are vital to helping people who cannot afford legal advice. I am on low income and would not have wanted to or been able to take further action without the information and support provided. Thank you to all the staff members within Law Centre NI for all your assistance and support. I am truly grateful.”
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Case summary
No jab, no job? Dismissing an employee for refusing to be vaccinated against Covid-19
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Ms Allette worked as a care assistant at a nursing home providing care to people with dementia. In December 2020, the Government started to roll out vaccines to care home staff and residents. The home arranged for its staff to receive their first dose on 22 December 2020, but this did not take place because of a coronavirus outbreak at the care home, (which included Ms Allette). The home therefore rescheduled vaccinations to take place on 13 January 2021, as the home’s insurer advised that it would withdraw insurance cover for coronavirus-related risks from March 2021, if any unvaccinated staff infected residents. Ms Allette refused to be vaccinated and was suspended on full pay. Ms Allette’s initial concerns for the vaccine were due to health and safety, but during a disciplinary meeting with her employer she alleged that her reluctance to take the vaccine was actually due to her beliefs as a practising Rastafarian. The disciplinary manager explained that the home could not make an exception for one member of staff, and that unvaccinated staff posed a health and safety risk to the health and lives of residents. He offered her a further opportunity to have the vaccine the following day. She refused and was then dismissed for gross misconduct because she had failed to follow a reasonable management instruction to get vaccinated. Ms Allette appealed on a number of grounds, which were rejected following a full re-hearing of the facts.
The Tribunal found the refusal by an employee to be vaccinated constituted a failure to comply with a reasonable management instruction, justifying dismissal on the grounds of conduct. The Tribunal concluded that requiring staff to be vaccinated was a reasonable management instruction at the relevant time (as this was before the implementation of the mandatory vaccination regulations). Whilst the Tribunal accepted that requiring an employee to be vaccinated interfered with their right to a 'private life' under Article 8(1) of the European Convention on Human Rights, it found that asking staff to be vaccinated was justified and necessary in the circumstances. It therefore had to balance her rights against those of staff and vulnerable residents.
This case is interesting to see how the Tribunal balanced the protection of health and the rights of freedoms of residents, other staff, visitors and employees.
Whilst the Tribunal concluded that the home could not have achieved its aims of keeping staff and residents safe in a less intrusive way, it did comment that more could have been done by the Respondent, for example placing the employee on paid or unpaid leave or seeking more information to try to persuade her of the safety and necessity of the vaccine, providing more opportunity for her to change her mind.
Dismissals should be a last resort and it is important to consider each instance of an employee refusing to have a Covid vaccine. This was an English Tribunal case and whilst it is important to note that Employment Tribunal decisions are not binding on any other tribunal or higher court, the Tribunal did make it clear that this decision does not mean that an employee who refuses to be vaccinated will be guilty of gross misconduct, or even misconduct at all, in another case on different facts.
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Harassment and bullying in the workplace
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Joint guidance on harassment and bullying in the workplace has been produced by the Labour Relations Agency and the Equality Commission. You can read the latest guidance here.
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Networking event to mark International Women's Day
To mark International Women's Day, the Women's Centre Derry hosted an open day networking event on Tuesday 8 March for women to come along and see what support is available to them in Derry-Londonderry.
The services ranged from wellbeing, health, education, employability, children's development and support services. We were delighted that a representative from the employment team at Law Centre NI was able to attend and talk about the services that Law Centre NI can offer.
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