The Luck of the Irish?

Here we are, only 5 months away from the Brexit date and, at the time of writing, no agreement on the arrangements for the UK to leave and the possibility of a “No Deal” Brexit still high. It’s small wonder that a number of my SME clients are considering options to set up operations in Ireland in order to continue trading seamlessly from April next year – especially when we read today that Brexit Secretary Dominic Raab is to order his civil servants to start issuing “No Deal” instructions to business.

But operating in a foreign country means following their employment laws. So how does Ireland differ from the UK?

The good news is that the Irish system – unlike many in the EU – is based on the same legal principles and processes as the UK. So it won’t look entirely unfamiliar to businesses and HR professionals. But there are some important differences, summarised below

Key Differences between UK and Irish Employment Law

Area of Law UK Ireland
Minimum Wage Different Levels based on age, and for apprentices Essentially an ‘under 18’ and ‘over 18’ rate although there are specific rates for those on training or in first two years of work after 18.
Working Time 20 minute Rest break entitlement after 6 hours working 15 minute rest break after 4.5 hours or 30 minutes after 6 hours
Pensions Auto enrolment No compulsory
Sick Pay SSP No compulsory
Holidays 5.6 weeks 4 weeks (with different  calculation rules for part-timers)
Zero Hours No guarantee (no work no pay) Guaranteed a minimum number of hours even if none worked (however, very few used – most employers would use “If and When” contracts – same as UK ‘casual’ – with no rights)
Agency Workers Rights only after 12 weeks with a company Rights from Day 1
Employment Status Employee, worker (limb b) or self-employed Employee or self-employed – no ‘intermediate’ worker status
Redundancy Payments Calculated on age and service Calculated on service only
Statutory Notice 1 week per complete year up to max of 12 Different ‘bands’ depending on service. Max 8 weeks after 15 years
Unfair dismissal Requires 2 years’ service Requires 1 years’ service
Working Time Can opt out of 48 hour max week No opt-out
Compensation No limit in discrimination or whistleblowing cases Limit of 2 years pay (discrimination) or 5 years pay (whistleblowing)
Settlement Agreements Can be used as an alternative to tribunal No such concept
Trade Union Right to recognition for collective bargain purposes if specific conditions met No statutory right to recognition
TUPE   More restricted definition of a transfer
Discrimination 9 protected characteristics 9 protected characteristics but some different to UK

·         Gender not Sex

·         Civil Status (= marital status in UK)

·         Family Status (parent of child under 18 – over 18 if disabled)

·         Member of Traveller Community

No: Gender reassignment, or pregnancy as a separate category (covered by gender)

Maternity Leave Pay Up to 52 weeks mat leave, 2 weeks after birth compulsory.

 

Employer must pay Statutory Maternity Pay if conditions are met

Up to 42 weeks mat leave.

Compulsory period of 2 weeks before and 4 weeks after birth.

 

No requirement on employer to pay, state maternity benefits available.

 

As with the UK, there is nothing to stop an employer offering above minimum conditions, but you can’t go below.

Obviously, this is only a general summary – more information is available from the Workplace Relations Commission which is broadly speaking the Irish equivalent of ACAS (although with more powers to inspect employers)

As well as recruiting staff in Ireland, some organisations are considering posting or seconding UK based staff there. At the moment, as both countries are EU members, this isn’t an issue. But in the event of a No Deal Brexit, will this change?

Yes. If the UK is not a member of the EU, or the broader EEA (which it won’t be in a No Deal situation) then UK nationals will be classed as third country nationals and will require a work permit. The good news is that Ireland has a considerably more relaxed approach than the UK – anyone from a third country can apply for a general employment permit unless they are in an excluded category of work (which can be found here).

So, relocation to Ireland is not too difficult in legal terms, although companies will need to think about plenty of other employment and non-employment issues. But – as per the Brexit secretary – now is the time to make your decision.

Important – this post is for general advice and information and neither Ariadne Associates or the author can be held liable if you take action based solely on the contents of it. You should seek professional advice, especially as the situation is changing daily.

 

No Deal – no pay?

The Government’s recent decision to publish a series of papers outlining what organisations should do in the event of a “no deal” Brexit has attracted a good deal of publicity and comment. But one that didn’t get much media attention was on “Workplace rights”.

The reason it didn’t is that there will be almost no change to employment law as a result of the UK leaving the European Union. Existing EU laws and regulations are now all incorporated into UK law (if they weren’t already) as a result of the EU Withdrawal Act 2018.

The only two slight changes – which will only affect a very small number of employers and employees – are that if there is no deal, UK based workers will no longer have the right to request that their employer sets up a European Works Council (something which only applies if the employer operates in two or more EU countries); and that UK employees who work in an EU country will no longer be protected by the EU’s Insolvency Directive if their employer becomes insolvent.

However, one area of employment law that may become important in the event of “No Deal” – particularly if there are problems in certain sectors – is the right to lay off staff temporarily. As an employer, you can request staff not to attend work at any point, but you can only do so without paying them* if you have an explicit clause in your employment contract.

Only a minority of companies include such a clause these days, since they are rarely if ever needed, and also because those that do have fluctuating demands tend to use “zero hour” contracts or other types of contingent arrangement.

But consider this scenario. Your company makes machines. Currently, you use widgets manufactured in Germany and imported by truck. In the event of a No Deal Brexit, widget imports are delayed, perhaps for a matter of weeks, while new customs arrangements are resolved. You’ve got nothing for your workforce to do but without a lay off clause you’ll need to continue paying them. Could your business survive?

So, you may want to change your employment contracts to incorporate an appropriately worded clause – contact us if you wish to do this.

But before you do, think about these three points

  • Changing contracts – even by agreement – is a time-consuming process.
  • If some or all of your staff won’t accept the change, do you really want to go through the whole process of dismissing them and re-engaging them for something that might not happen?
  • Even if staff do accept the change, it’s likely to affect their morale and commitment. Do the benefits of a lay-off clause outweigh the possible loss of productivity, increased absence or higher turnover?

The right to impose an unpaid lay-off may be a necessary step for your business – but think about it holistically, not simply financially.

(*you may have to pay a small “guarantee payment” for the first 5 days of any lay-off period)

Strikes, Strictly and Brexit

I heard an interesting theory put forward recently (by comedian Frank Skinner) that Strictly Come Dancing led to Brexit. In the 2008 series, journalist John Sergeant was possibly the most hopeless contestant to ever appear on the programme. However despite the  frequent condemnation of the dance judges, the public voted week after week to keep him in the show. Skinner suggested that it was perhaps the moment that people realised they could ignore “experts” and get the result they wanted through voting in sufficient numbers.

In common with every other area of business, HR professionals are currently grappling with the implications of Brexit. Much of the debate surrounds employment law (will it change or not, and if so how?), recruitment (what will be the rules on recruiting EU nationals, will they be required to have work permits), and skill shortages (will we still be able to employ existing EU staff, and if not how will we fill the skills gap?).

However, one overlooked area is that of Employee Relations. We’re currently seeing a wave of industrial disputes – railways, airline staff, Post Office workers, airport baggage handlers, Weetabix factory workers. While some suggest this is some wave of 1970s style union militancy, the fact is that the majority of these disputes are over ‘old-fashioned’ pay and conditions matters, and they are overwhelming supported by affected staff in secret ballots. Perhaps the Brexit vote has convinced ‘ordinary workers’ that they can change things by voting?

What it has also revealed is the poor approach of management in most of these situations. It may be arrogance – a belief that management proposals can always be implemented because the employer wants to, irrespective of the views of employees. Or it could be a refusal to believe that people will do something so ‘stupid’  – they won’t vote to strike and lose pay before Christmas (just like they won’t vote to leave the EU or for a dancer as poor as John Sergeant). Mostly however I suspect it’s a lack of competence – managers, including many in HR, just don’t know how to negotiate on a collective basis. It’s interesting that several of the disputes have been quickly solved when expert negotiators from ACAS have become involved.

So perhaps that’s another Brexit issue for HR people – the need to brush up on, or even gain in the first place, the knowledge and skills to manage employee relations. As someone who cut their HR teeth in this area, I’m looking forward to some full and frank discussions with trade union colleagues in the coming months and years!

Anger, Brexit and Moving Forward

I was reluctant to write a post about last week’s EU referendum. Enough keyboard warriors have already given their reactions, opinions and solutions. But a couple of recent posts and comments from HR people have changed my mind.

First, let me state that, as a Remain voter, I’ve been through anger, disbelief, shock and all the other emotions that many others (like this, this and this) have also experienced.  It’s small consolation to live in a city which voted overwhelmingly to remain and where I’ve yet to meet anyone who’s anything other than horrified by the result and its implications for them and their children.

But what I will not do is get involved in a blame game. People who voted Leave did so for a variety of individual reasons – some will have had well thought out principled arguments, some were out and out racists, some had a rose-tinted and nostalgic view of England in the 1950s and some were just conned by the duplicitous snake-oil salesmen leading the Leave campaign.  To start trying to demonise the old, or working class people from the de-industrialised north, or those who live in rural areas, or those without a degree, for the way they voted is neither constructive not helpful. Indeed, the demonising of certain groups, particularly by politicians (and I don’t just mean UKIP) is the sort of tactic that has led us to the present situation.

We talk in HR a lot about “engagement” – an ill-defined concept which provokes a range of reactions from evangelism to cynicism. But I remember in one discussion a colleague saying “I can’t really describe what an engaged employee looks like – but I certainly know what a disengaged one is”. What we saw last week was the result of a disengaged population who wanted to kick back against something. As an old boss of mine used to say when discussing union negotiations, “when you’re in a lose/lose situation, do what you want to do”. And that’s what they appear to have done.

The UK seems to be in a collective Kubler-Ross curve at the moment. But the only way we will move forward to is get past the denial and anger stages and start to make the best of our new circumstances.  And maybe that means applying some of the ideas we use to try to improve employee engagement on a wider basis.