So let's get to some awkward issues then, Seamus. I stumbled across this question on an HR forum. I think it may well have been on the CIPD actually. So the person asked, "It has been brought to my attention by a concerned employee that we have a member of staff who has extreme political views. The individual regularly expresses and discusses his views around anti-Semitism, white supremacy, racism, and homophobia with his peers, and he is understandably making them uncomfortable. How do I handle it?"

This struck me because we are seeing a lot of cases coming out in England around this idea of philosophical beliefs being tantamount to religious beliefs. Obviously, England has the Equality Act. We don't. But political opinions are covered in Northern Ireland under the Fair Employment Legislation, and it does have a knock-on effect.

So I think, during the pandemic, we were encouraging people . . . Well, people seemed to feel encouraged to bring their whole selves to work. "There's my dog. There are my kids". And then [inaudible 00:12:01] that we were all arguing about. There are a lot of weighty issues that seemed to just be, "Let's all talk about them". Is it really okay to be talking about that in the workplace is the question, Seamus?

Seamus: Well, I suppose that the instant answer is that as a . . . Can you bring your whole self to work? And the answer should really be "No, don't. Please don't".

And it is that aspect where we all have different values. We all have different opinions. If we look across the world in general . . . I mean, if you look at America, there are so many sort of very challenging issues that are happening over there, whether it's to do with gun control or women's rights and things like that as well.

And the issue is, Christine, I suppose that when those issues are talked about . . . Certainly they will be talked about in work. They may be debated in work. But the risk is it's that fine line of things being pushed to the point where someone takes offence or where they're feeling bullied and harassed if they have somebody that has very strong views, and maybe that person feels that those views are being pushed onto them whenever they don't want that.

And you can see the snowball effect happening whereby you could potentially have an employee that will raise a complaint with management. And then you're into the potential of dealing with grievances, investigations, potential disciplinary proceedings arising out of that, and even going down the line of dismissals.

I did interestingly read as well, and just for the point of why we're talking about it, that there sometimes can be almost this knee-jerk reaction from employers to dive straight in and get these issues dealt with. Take it out by the root if that's the issue that has arisen, and people being dismissed and terminations happening without a proper following of statutory procedures and things like that.

So, certainly, I wouldn't say that matters need . . . There shouldn't be a knee-jerk reaction. And I think that where those issues do arise, there should be proper investigation, as you would investigate any other matter. So proper investigation and not a knee-jerk reaction to just saying, "Well, this was said. That's not what our organisation is about. That's not our ethos. Let's make an example here and dismiss the person". I think that there's huge risk in that as well.

But there's no doubt that you're exactly right. Even the fact of working from home, on people's cameras, you can see the background of their home. You may see different values, religious emblems, flags, all those sorts of things that people have up at home, in their personal space, that might just cause offence to other people, or even just trigger other people in relation to being outspoken and raising issues.

So I think it is that aspect of boundary setting. And I think most of us and the majority of us are aware of what is good to talk about, issues to raise. And I think particularly in Northern Ireland, we're probably better at that than what we would see maybe in our counterparts, just given our backgrounds and histories and all of that.

But you can see those issues arising across the water in England, particularly around the Black Lives Matter movement. And think back to some of the issues that arose last year around football and racist comments being made, or perceived to being made online by employees that worked for certain organisations who then appeared on national media outlets being named and shamed. And then employers having to take steps in relation to dismissals, and thinking about some other substantial reasons and then damage to reputation.

So you can see the whole big snowball effect. And it's not just necessarily a matter where you're saying, "It's not about bringing yourself into work". It also impacts what you're putting out there outside of work on social media. A lot of the case law that we come across now does relate to people's opinions, values, comments, their beliefs that they place up on social media, and the risk then of an employer considering that there's damage to their own reputation.

So I think that the starting point has to be always that the employer needs to take a lead in this process.

I read somewhere that said, "If you have a team of more than five people in your workplace, you're going to, at some point, get some sort of conflict or some aspect of disagreement arising". That's all it takes, just five people. And it could be less than that. It could be two people. We've all had those cases of the two people in the office.

But the starting point, I think, has to be for the employer to be clear. And I think if you were to end up at an industrial tribunal, the question that the tribunal will ask will be, "Well, what is the policy and procedure? What is the training that is being provided? What does it say in the staff handbook? And how is that being communicated to employees?"

I know that, just looking at your popup behind you there in relation to Legal-Island's diversity and inclusion, it is all about those issues for employers. And I would expect that whenever you get to a tribunal case, those will be the issues that a tribunal will look at also to see what is the written policy that . . . What have employees been told? What have they been informed about? And there should be those policies in respect of how conversations take place, this idea of mutual respect amongst colleagues.

And the simplest things can trigger it. It can be a sporting game on TV the night before, or maybe an issue that has arisen in one of the soap operas that that's being talked about. It's any of those aspects that could just light the match where the boundaries are pushed. And I suppose it is that aspect of just having a policy and procedure in place that employees are aware.

I mean, nobody is saying you come to work and you're robotic, and you don't have discussions. We're all human at the end of the day. But it's being aware of what the boundaries are and, I suppose, steering away and staying away from those confrontational aspects that are likely to offend or cause an employee to feel that they're being harassed or bullied within the workplace, because that's when it will lead to sort of formal procedures and difficulties arising at that point.

Christine: Yeah. The Forstater case, which is the philosophical beliefs case over in England, it recently had a ruling saying that a woman who put on Twitter that you could not change your biological sex . . . She was dismissed by her employer for having that view. It has been upheld that she has the right to have that view. She does not have the right to discriminate against transgender people, but she has the right to hold that view and express it.

So I think they can feel like such big, weighty issues in these cases that employers are scared to deal with them. But I think what came out of that case is follow your procedures and don't have a knee-jerk reaction.

That employer immediately thought, "Oh my goodness, the optics on this are awful. People are going to think X, Y, and Z about us as an organisation". But if they took a step back, they could see that it wasn't actually in the course of her employment. It wasn't actually to do with a particular employee. And if they'd gone through their normal disciplinary procedures, they would've maybe had a different outcome in that case.

So I think the issues are scary and there's stuff that we don't all want to be talking about because it makes us all feel a bit uncomfortable because everyone has a very different moral standpoint on things. But when it comes down to it, it is just about having the procedure and following it and not going, "You're sacked because you think differently from me".

Seamus: Yeah, exactly. And I think that Forstater case, when you read actually what it was that the claimant tweeted in response to what was originally tweeted, you could look at it from one perspective and go . . .

This was a lady that had a visiting fellowship in the Centre for Global Development. She had applied for a full-time role. And her fellowship wasn't renewed and she wasn't provided with the job.

And essentially we have this tribunal. They have an EAT then that it's appealed to, and then they revert it back to the tribunal. So it is just a tribunal decision. But I suppose what it is saying is that it's not the belief or her own belief of what it is, that she's entitled to hold that belief, but it's the way and the manner in which she could put it forward.

And I think at the time, the respondent had said that she had specifically used language that was exclusionary and inflammatory. And I think whenever that was considered and looked at, the tribunal said, "Well, it wasn't, and there you have it", in relation to the ability for the employer then to be told that they've actively discriminated against the employee.

So it's a really good case, I think, that shows the really fine line that there is. There is almost this panic that arises when something is drawn to an employer's attention, because everybody is so worried and concerned about the backlash that happens, whether that's with further social media postings or whether it's something that would attract media attention.

And absolutely, there is a point and a place for issues that are in breach to be dealt with and to be dealt with appropriately and properly. But there are other times that arise where the employer can, I think, jump too quickly and not get proper consideration to what has maybe been put out there.

And also, what's really important is you can't just say, "Well, that person said X and that's wrong". You have to look also at the person and what their cultural background is and where they're coming from in relation to . . . Ultimately, what is their belief? Is it a philosophical belief that they're entitled to hold, and one that the employer should not be impinging upon?

So there's a lot in the mix there in relation to how employers should deal with that. But again, I think it does come down to the fact that rather than this normal test of reasonableness that we talk about . . .

And what I was reading from one of the commentaries in it was that it said that employers must consider whether an employee's views are within the remit of what would be considered to be worthy of respect in a democratic society, even if that might be offensive to some.

Now, if I give that response to a client on the phone, I know what they would tell me. But in a tribunal case, that's the level that you're talking about.

And this case really, Forstater, is making it clear that it isn't necessarily a punishable offence or a disciplinary offence for somebody to have a contrary view. It's just about whether the manner in which they put that across crosses the line, and then you're into the potential of the damage to reputation.

And maybe some of these organisations that hold very high values about certain things that we all wouldn't necessarily agree with or be bothered to be agreed with . . . It's that word of "woke society" and all that kind of stuff. It just depends where you sit in relation to that.

But I do think that there has to be an element of taking it in the round as well as to what the wider impact of comments might be and things like that.

Christine: Yeah. And I think it comes down to what your workplace is like. Maybe in a warehouse, you wouldn't be having the kind of political debates. At Legal-Island, we're paid to have those political debates. So that's acceptable.

And also reputational damage. If you're Tesco or Sainsbury's or Microsoft or something, obviously, your reputational damage could be bigger than kind of Joe Blogs Manufacturing in Belfast.

So it's one of those ones you have to take a view on it, don't you? What's the culture in the workplace? Will it actually damage your reputation? Arguably, in Northern Ireland, it's such a small place. Everyone knows what you're up to and you could lose your reputation quite easily.

So I think it can be a tricky one. I don't think that it needs to be as scary as some of the case law that's coming out of England makes it feel like because there's very highfalutin language used.

Seamus, do you have some takeaways for us on this point before we move on?

Seamus: Yeah. I think just in general there is an obligation on employers to make their employees and their workers feel safe and comfortable in their workplace. That's where the boundary can be for some people, that they will say, "I feel harassed", or, "I don't want to come to work and have to listen to those sort of comments. I find those offensive", things like that.

So I think employers do need to be clear in their guidance and they need to be clear with management and employees around the acceptable level of conduct and discussion that can take place. And that should be in a handbook or within policies and procedures.

The other thing then is the training aspect of it. It's not good enough just to have it in writing. There has to be that aspect where there has been training provided. There are organisations like Legal-Island that can provide fantastic training in relation to diversity and inclusion and things like that as well.

Even when comments are not directed at an individual, and I think this is an important point, any individual can bring a claim for harassment if they feel those comments that they've heard are offensive, hostile, or intimidating. It's very broad. We know that the definition of harassment is broad. The employer must take those complaints seriously.

Certainly don't knee-jerk, but you still need to take them seriously and they should be investigated.

Then the other aspect of it, and we've covered this off before in prior webinars, is that aspect of if it does get to the point where there is disciplinary action, make sure that you're following the statutory procedure. And if you're coming down to maybe considering termination or reputational damage, you're maybe more looking at that some other substantial reason.

I think we have a few interesting cases that will come up shortly in relation to all of that as well. But if you are doing that, take advice in relation to it, because that is a thorny way to deal with things.

Christine: Brilliant. Thanks very much for that, Seamus. Very helpful.