Legal Island’s Christine Quinn and Seamus McGranagahan of O’Reilly Stewart Solicitors explore what active bystanding really looks like, what the law says, and how the right training turns good intentions into confident action.

Transcript:

Christine: Welcome to Employment Law at 11 sponsored by HRLocker. My name is Christine Quinn. I'm from Legal-Island, and as always, I'll be chatting to Seamus McGranaghan of O'Reilly Stewart Solicitors.

So, what's the topic today? We're talking about how staff and you can be good, active bystanders in the workplace. Most people witness something wrong at work, but few know how to act. Today, we'll be discussing the law around that.

Please feel free to submit your questions at any time using the Q&A feature, and I'll put them to Seamus as and when appropriate.

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Let's get into some polls, get you all wide awake on this Friday morning. We'll start with some polls just to see how you're feeling about the active bystander issue.

How would you describe your organisation's current culture around speaking up? Do people feel confident raising concerns, it depends who's involved, or there's a real reluctance to speak up?

Let's see where you think your organisation sits in this. We'll get a feel for where everyone's coming from today. I am seeing there that 57% are saying it depends on who's involved.

Seamus, I don't think that's a surprise. I think if your CEO is behaving poorly, it's a brave person that knows what to do in those circumstances, isn't it?

Seamus: Yeah, absolutely. And just looking at the polls there, 30% feel confident in raising concerns. That's less than a third of the workforce. So that's not a great figure, I'd have to say.

I mean, when we have moved in such directions now in relation to accountability and where organisations sit and certainly where even the case law has taken us, which we'll maybe get into a bit later on, it is unsurprising, but it's still quite shocking that you would have a situation that it depends on who's involved. So, it depends on the circumstances of who the parties are involved.

And classic sort of Northern Irish stuff. Is it the boss's nephew, and nobody wants to say anything in case you end up with your own P45 or something along those lines?

I suppose there always is the worry about putting your head above the parapet and stepping into those circumstances. And the only real way around that is to make sure that you have a clear policy and procedure, that there's adequate training to reflect your sort of open culture and the cultures that are expected from the tribunal if you end up on a case like this where there are cases of bullying and harassment.

The key things always have to be that you take it back to the basics, your policy procedure, and you're adopting and making your organisation reflective of your policy and procedure and how we go around that. The tools for doing that are the training, and the training coming from the top down to the bottom.

Christine: Brilliant. Thanks for that, Seamus.

Let's have a look at our second poll, if you could, Gosia. If you witnessed a colleague being harassed or bullied at work, how confident would you feel about intervening? Would you feel very confident, fairly confident, or you wouldn't know where to start?

I think this relates very much to the first question. Maybe if it's a more junior colleague, you would feel okay about it, but not that more senior one.

So let's see what you think. We're seeing there that 24% very confident, 67% fairly confident, but there's still 9% there that wouldn't know where to start, Seamus.

Seamus:  Yeah, I suppose there will always be those individuals within every organisation, and you could probably think of them straight away when asking this question, people that will always step in, people that will always defend whenever they see something wrong and that's not right, that they will step in.

And that is a positive step, but it can also be a bit of a nightmare for HR as well because if they step in and they do the wrong thing, if they step in and they become aggressive, and if they're not supported whenever they step in subsequently by the organisation, it can lead to all kinds of problems.

So, it's about making sure that we have this in the round. And again, I think it's coming back to the organisation as a whole, the culture of it. It's always that saying of you taking the needle and the thread and making sure that it's a joined-up process as best that you can.

But it's good to see that there are people that feel confident about being able to step in and deal with the matter.

There could be all kinds of different situations arising, but the principles will always be the same from a legal perspective. And I think for those that are struggling and wouldn't know where to start, starting point is always you need a good policy and procedure in place, and then you need to follow that up with your training.

Christine: Brilliant. Thanks very much, Seamus.

And on that note, the last poll question is "Does your organisation currently provide active bystander training?" So yes, and it's up to date; yes, but it needs refreshing; or no, not yet.

Now, I think active bystanding sits within the portfolio of kind of discrimination and dignity at work type stuff, but it might be slightly more left field. It might not be what everybody's got. Let's see where you're sitting on the poll.

I'm seeing there, Seamus, we've got quite a bit, 76%, are saying no, they don't have it yet, 5% saying it needs refreshed, and just 20% saying yes, and it's up to date. So that's kind of what we were thinking, wasn't it, Seamus?

Seamus:  Yeah. And it is sort of reflective of where things are. I mean, you only have to look online or at any of the news items, particularly around the likes of . . . There's the ongoing McDonald's investigation that they have on bullying and harassment, and the BBC and all of the sort of scandals that have come out of the BBC.

The main criticism for the BBC has really been that they have perhaps known about these things and not taken any active steps to resolve the matters. And that very much is similar to what we're seeing here in the polls as well.

I mean, the big sort of news item this week has been around the culture of the police service in Northern Ireland and around misogyny within the organisation. And I've had a bad day, I had to go to the dentist this morning, so I was late coming down to work, and I caught a bit of the Stephen Nolan show this morning. The key topic that they were discussing was around misogyny in the police service.

But yesterday morning on the way to work, I was listening to Radio Ulster, and I did hear . . . There were a few commentators on, and there was a female commentator on, and they were talking specifically around the recent case, the Katie Simpson matter, that has brought this to the attention and the very recent report that has come out reporting that there's misogyny within the organisation.

One of the questions was asked, "Well, why did nobody report this? Why did nobody report it?" And that's exactly what we're talking about today. It's that cultural aspect. And we don't know the rights and the wrongs of it, but the response was, "Well, it was reported, but there isn't a culture within the organisation that there's anything then done about it".

That, for me, I think in terms of today's topic, is the key aspect. There are various pieces around the periphery of it. You read some of the statistics, and not everybody reports everything that happens within work. And there's a real issue around individuals coming forward to put their head above the parapet to say, "I'm not happy in the way that I've been treated".

Or Christmas nights out, something happens, and they don't report it because they don't want to get anybody in trouble and things like that. We only really can talk about the reported cases that we know about.

But the statistics there will very clearly set out . . . and a lot of the tribunal cases that come around, and if you look at our wealth of Equality Commission cases as well, it's fairly evident that these cases that have got the hearing and that have been heard are the ones that settle later on.

But there's a failure of admission by employers in relation to circumstances, and there's a denial of circumstances within their organisation, and then they get a public judgement, named and shamed within the tribunal judgement.

You can look at any of those Equality Commission cases that have run their course, and the problem seems to be that the culture is not supportive of people reporting matters or that they fear that they will report it and there will be reprisal. Or indeed that they'll report it and nothing will be done about it.

In fact, in a good part of those cases, you'll find that the person that does report it ends up bringing legal proceedings, and they're either claiming constructive dismissal or unfair dismissal along with their discrimination claim.

And so, I think from a place of moving forward, it absolutely has to come from centring around what is your ethos within your organisation? What is the culture that you're setting out for your staff? And do they feel safe in being an active bystander, reporting matters, supporting somebody that they see that is having difficulties or challenges in work, in the comfort that they know that the employer will take that seriously?

Christine: Brilliant. Thanks very much, Seamus. And thank you for everyone who voted there. It's very insightful.

I suppose, really, this active bystanding is quite an unusual phrase, but what it really is about is about speaking up. And we were saying when we were chatting before that there is a campaign, really, for men to speak out when they see sexual harassment in the street, or they see their friend doing it. It's about calling your mates out. So it is quite timely, this discussion.

Let's go back to basics, Seamus. What does the law in Northern Ireland say about what an employer . . . What's their responsibility when harassment or bullying occurs?

Seamus: Well, look, those are the two main types of offences that we see. They tend to be the bullying and the harassment, and that can come in the form of any of our protected characteristics that are set out within our legislation.

So, the one that mainly comes that you think about is sort of arising via sex discrimination and harassment, bullying, victimisation arising as a result of sex discrimination, generally where there's a male offender and a female victim. It's not always that way. I'm generalising about a lot of the cases that you look online and see that arise.

But it can happen in any sphere, whether it's due to disability or down to your racial, ethical background, and all those sorts of things. So, it covers all of our protected characteristics. The bullying, harassment, victimisation elements tend to be where it sits.

And on harassment, you'll usually find that it's offensive jokes or comments that are being made, sexual remarks or unwanted touching, which can then lead into sexual assault rather than just harassment, racist/sectarian language, mocking disability or age.

And it can come in all the different forms. It doesn't need to be that it's you and I having a conversation in the corridor and you saying something. It can come in all types of forms, particularly digitally and through text messages and social media and all those sorts of things that we have.

Harassment is unlawful where it's connected to a protected characteristic, and then we have also aspects of bullying. The definition of bullying is the repeated inappropriate behaviour intended to intimidate, undermine, humiliate, or injure another person. And those are sort of persistent criticisms, public humiliation, exclusion from work activities, spreading rumours, those sorts of things there.

And unlike harassment linked to protected characteristic, bullying itself is not a standalone claim in Northern Ireland. And often when you meet with a client or what comes across the desk, they say, "Well, I'm being bullied", and you'll say, "We need to take it out another step from that as well and look at the harassment side".

The headache for the employer is that those sorts of claims can lead to claims of constructive dismissal, breach of contract, health and safety failures, harassment on the basis of discrimination.

And the law does set out in all the guises of the Sex Discrimination (Northern Ireland) Order, the Race Relations, Disability Discrimination Act, DDA, and the Sexual Orientation and Age Regulations. Essentially, what the legislation says is that employers have a duty to prevent unlawful harassment and discrimination. You have to provide a safe working environment for your employees.

There's a requirement to investigate complaints fairly. There should always be an investigation around any complaints that arise. And then you have to take reasonable steps to protect the well-being of your staff and employees.

Ultimately, an employment tribunal could hold that an employer is liable if they fail to take reasonable preventative action in relation to any of these situations that arise.

So, generally, what you'll always see is that the claim might come through and an individual might be named. The alleged perpetrator could be named. But the employer is vicariously liable for the actions of its employees. And in the vast majority of cases, you will see the employer named, and the tribunal will very much turn its antenna and it will look to see what has the employer done in terms of protecting its employees. What has the employer done to initially advise the employees of what standards are expected?

A great way of doing that, as I said, is about having very clear values, setting those out in writing. Often, you'll find that near the front of the staff handbook. "These are our values and what we believe in. This is what we stand for, and these are the things that we don't stand for".

So, it is about making sure that there is open communication with staff about that. The tribunal will be very critical if the staff haven't been told what the expectations are.

And you might say, "Well, look, everybody knows that that's inappropriate or that you don't do that", but unless it's in writing and in some kind of written-down shape, you're going to be in difficulties.

Then, as I said earlier, it's about your policy and procedure and making sure that you have clear written policy and procedure.

Christine:  And what about the old case . . . I mean, I think I've heard this so many times during my career. "Well, yes, we were told that such and such happened at the Christmas party, but he or she doesn't want to make a formal complaint, so we thought we would just leave it". How strong is that argument?

Seamus: Well, I do think that there is a time and there is a circumstance where you maybe have somebody that doesn't want to engage. There may be very personal reasons for that, and there's an element that you do have to respect the wishes of an individual employee, particularly where you would worry that pursuing an investigation might result ultimately in damage to their safety and their welfare. But I would say that those are at the long end of the scale.

Where these matters are brought to the attention of the employer and the employer becomes aware, there's a duty to investigate and a responsibility to conduct an investigation and get to the bottom of the position, what has happened.

It may be that this person has made it clear that they don't want any action taken, but if it was to happen to another person and you ended up in a tribunal and there was evidence to say, "Well, this was the second occasion and the employer didn't do anything about it on the first occasion", it leaves a clear witness for the employer.

So, I think you do have to measure it, but sometimes you just need to be clear with the employee, "That's fine if you don't want to give a statement, but we still need to proceed with an investigation here and ensure that we are protecting all of our staff, our clients, our customers, everybody else that comes in contact with the business".

The other big issue is going to be the reputational damage. If you have a case in the press or a publication from the tribunal in relation to a case, it could result in severe damage right up to the point where a business has to close because the damage is so bad to it.

Christine: So even if you're hitting brick walls, you still need to document your attempts to investigate and at least know you've got that on file. It's a little bit of a safety net should anything else happen.

Seamus:  Absolutely.

Christine: Seamus, what's the risk to an organisation where a culture of silence exists? So, there's just an attitude of everyone say nothing, keep your head down. What's the risk there?

Seamus: Well, it becomes a dangerous and unsafe place to work if that is the position within the organisation. And there are so many online forums now in relation to where employees can express their unhappiness or where they're unsatisfied with things in work. And when it comes to recruitment and retention of staff, this has serious potential to damage the business in such a negative way.

There are individuals that you would hear saying, "Well, no, I wouldn't work for that company. Do you not remember?" Those things stick, particularly whenever there has been reported cases in the media or there have been court cases or tribunal judgements and things like that as well.

I think that the main damage that it can do for the business is the internal damage in respect of the employees.

You'll remember this from your time in private practice, how unsettling any tribunal case is for an employer. And there's often a real denial sometimes whenever you're acting for the employer that anything ever bad happened and, "No, no, this couldn't happen in my organisation", particularly in this jurisdiction where it's quite small. Often, businesses are small, family-sized businesses.

And a lot of these cases that you see are preventable, or certainly they wouldn't get to a tribunal stage if there had been appropriate action taken at the time to ensure that there was a proper investigation, grievances were taken seriously, the perpetrators were brought to task in respect of their actions, and where victims felt that they were safe and happily prepared to report matters to their employer and not have fear of reprisal.

A recent case that I did that we resolved in judicial mediation, one of the issues that came out of that through judicial mediation was that the employee had been absent from work from the grievance happening, because there was a lengthy period when the grievance was submitted until there was any sort of outcome that was issued.

The employee had remained off work and, up to the point of the judicial mediation, was still absent from work. And the concern for the employee was that "Because I haven't been in work, everybody thinks it's my fault or that I've done something wrong". Yet the alleged perpetrator has been in work and, in fact, had been promoted.

You're taking it from the other aspect as well, and that was one of the aggravating factors during judicial mediation that was pointed out, of how that could reflect badly at a hearing if that evidence was to be borne out.

So, there's serious damage that could be done with the employer. And there are lots of things that the employer can do, and there are lots of aspects that the tribunal will look at and investigate in relation to the employer as to what steps they've taken in order to ensure that these things don't happen.

Christine: And I suppose there's also just the idea that there could be stuff going on in your organisation you have absolutely no idea about. If there's a culture of, "Oh, don't say it. Don't rock the boat", you're never going to know that there's somebody potentially breaking the law, getting you into deep water, and you know nothing about it because your employees don't want to share it with you.

Seamus: Exactly. But I think just around that aspect of active bystander . . . You hear the phrase innocent bystander, and a lot of the times somebody never intends to be in the position of witnessing or being the party that comes across these sorts of issues happening.

But I think maybe around some of the important aspects for training that an employer could have is that there's sometimes a risk . . . and we've come across those cases where somebody does step in and just makes the situation a million times worse. There could be a brawl and fights and violence and things like that that arise as well.

I think just around being an active bystander, what I would say is that that's somebody who recognises the behaviour as being inappropriate, they choose not to ignore it, and they take safe and reasonable action to challenge, to report, or interrupt the behaviour that they see.

I think what's important there is that the active bystander doesn't mean that somebody's confronting situations aggressively. It means that you're helping to create a respectful workplace culture.

So, thinking about how do you go about doing that, I think some of the examples could be that you're challenging inappropriate jokes, that you're supporting a colleague maybe who has experienced or is experiencing some form of harassment, and that you're reporting your concerns to management or HR.

And that's the key to this as well. A big part of your culture in your organisation has to be that if you do step in and interrupt unacceptable behaviour, it has to be done safely. But you should immediately then be reporting that to the appropriate channels within the organisation, whether that be the line manager or through to HR as well.

So, I think that if you are stepping in and interrupting, there needs to be training around how you do that safely, because there could be somebody that would just go in and thump somebody in the head and say, "But it was okay for me to do that. It was fair to do it because you didn't hear what they were saying to the other person". And the response will always be, "Well, that's never an appropriate response", and those sorts of things.

Then it's just about the maintenance and the aftercare as well for someone that has had this. It's about checking in with affected colleagues after that.

I suppose it's interesting that there's currently no specific law in Northern Ireland that would impose any sort of direct legal duty on employees to act as active bystanders. So, there's no requirement for anybody to do this, but I think it's really important.

And just given where the case law has gone and given where society has moved to, every workplace needs to be a safe workplace where someone feels happy and safe that, even if they don't feel confident stepping in, they know that they can go and report it and they know who they can report it to and that there will be something done.

What we do have in Northern Ireland, though, and what our laws do say, and what all of our guidance . . . There are lots of good and useful resources from the typical Labour Relations Agency guidance, the Equality Commission guidance, that will say what you need to do.

What the law does say is that you need to maintain dignity at work, you need to prevent harassment taking place, and you need to be creating a good and harmonious working environment.

And some of that guidance from the Equality Commission and the Labour Relations Agency talks about things like early intervention, shared responsibilities, that there are respectful workplace cultures, and that there's staff training on unacceptable behaviour.

It comes back to that point that employees need to be aware and workers need to be aware what's acceptable and what is not acceptable to the employer, what the expectations are.

And then it's back to this aspect of employers are expected to take reasonable steps to prevent harassment. What I would say on that is that active bystander training specifically is increasingly viewed as one of those reasonable preventative measures that an employer should be providing to staff.

Christine: And I suppose in the culture we're in now, silence is not seen as a neutral act anymore. Staying silent can sometimes say, "Well, I might agree with what that person's doing or saying". It's really important that the organisations get into people's head, "If you see it, you have our authority to do something, to speak up, to step in".

Because you could be creating an environment where there's a bit of sexist jokes going around, there's a bit of racist jokes, but everyone feels uncomfortable and nobody says anything. And that's creating that hostile environment, isn't it?

Seamus: Yeah. Absolutely. And even if you look around recent sort of controversies to do with sexual violence against women and the Mandelson scandal in country parliament at the minute, the societal sort of position is really around accountability. And that aspect of being a silent bystander is almost just as bad as being put up there as the person that perpetrated the events themselves.

Christine:  Yeah. Somebody has witnessed something in work, Seamus. They've come to one of our HR people that are listening at the minute and reports it. What mistakes have you seen in practice? What mistakes do employers typically make at this stage that gets them into hot water further down the line?

Seamus:  Well, the big mistake is the denial and the ignoring of it and employers not investigating complaints whenever they're raised. The onus, as we said earlier, and the sort of legislative onus is on the employer to take these allegations seriously and to make sure that they are investigated. Sometimes there can be a brushing it under the carpet.

And we do talk at times around grievances and resolving grievances informally, bringing the parties in at an early stage, trying to resolve it, but that's not always the appropriate way to deal with matters.

And certainly, whenever you're coming to dignity at work, bullying and harassment, it tends to sit on a different level as to what you would for maybe run-of-the-mill grievances around disputes within work between two colleagues.

So, there should be a proper investigation, and that will include meeting with all and any possible witnesses that were present at the time that the allegations arose.

Know your dignity and harassment policies. Be clear about what those are.

The concerns need to be reported promptly, and the investigation needs to take place promptly, with fresh minds and fresh eyes on events. And there should be an absolute avoidance for punishing anybody that is speaking out or trying to have issues addressed.

Key thing is always that there needs to be a proper report and records kept of the investigation. And you made that point well earlier on, that even if the person doesn't want to engage, there still is an onus to investigate, and you would still be keeping a record of the investigations that have been undertaken and what those outcomes from the investigation might be.

And then I think it's also really important to ensure that there is support that is provided, and that the support given is respectful and that it's confidential.

Particularly, a lot of victims of these issues feel embarrassed and they don't want attention drawn to it. They may still require the employer to investigate and to get an outcome in relation to it, but they want it done confidentially and respectfully. They don't want to have to continue to come into work and feel embarrassed or feel on edge or a fear of reprisal from other colleagues.

That can happen, too. And you sometimes get a split in the camp where you'll have one group following and supporting one person, and the rest doing the other.

So, there needs to be just that careful balance, and you maybe need to look at your aspects around having the employee in work and having those supports in place, and if needs be, referrals to occupational health and any of those sorts of ancillary services that you might be in a position to provide also.

Christine: I think, Seamus, we've all in private practice been handed a bundle of dusty documents that are filed under dignity at work policy, and you can see, "Last reviewed October 2020", or something years ago. It's a bit dusty. It hasn't been updated. I would say that is really how good intentions of the organisation are. They have a dignity at work policy. Fantastic. But how often would you be looking at reviewing that, making sure it's fresh?

Seamus:  I mean, I think that the training probably needs to happen annually. So whatever format the training is taking place in, whether it is an hour's training once a year to refresh everybody's memory in relation to expectations, dignity, rules around bullying and harassment, I think that there probably needs to be some form of annual training.

As regards your policies and procedures, they do need to be kept updated, they need to be kept fresh, and often they're marked that they'll be reviewed every 12 or 24 months.

There was a recent case there in England. I'll maybe speak about it later on just when we're talking about reasonable preventable steps. I think that this was the EAT on this case specifically. They had said that the policies had been reviewed within the past three years, and I thought, "God, that was quite a long period, three years". My expectation would be that maybe biannually would be the way to ensure that your policies and procedures are up-to-date.

Likewise, as well, and tongue-in-cheek with it all, if you're keeping on top of it, then you're listening to webinars like these, and you're getting up-to-date information around specific new policies and procedures that have come in.

I mean, we're quite fortunate here in Northern Ireland that we're quite net. We have Labour Relations Agency, we've the Equality Commission, and we've a few other organisations that lead out with guidance pieces.

The Labour Relations Agency guidance often comes along with a health check that is subject to the powers of the tribunals, that they can take that into account. Those guidance pieces by the Labour Relations Agency . . . So, we do our best whenever we get new guidance to inform through the webinar here about those pieces of guidance.

And maybe specifically, as well, if there is new guidance . . . We're all waiting on the new legislation coming through and filtering down through us. That is a great opportunity to review your policies and procedures and see if they need updated.

So, specifically, also where you know that there are changes in legislation or that there are new regulations that have been provided, again, you need to get on it fairly quickly and make sure that your policies are up to date and reflective of any new legislation or guidance.

Christine: So, you heard it here first, folks. You need to name-check Employment Law at 11 as one of your trainings for HR, although we'd prefer not to be named in any tribunal case, to be honest with you.

So, we've got a few questions coming in, Seamus. Have you got any guidance on support to the perpetrator and the active bystander? Can they be given support, or what would you recommend as well?

Seamus:  Yeah. I mean, I think that it's the same as really going through any kind of disciplinary process or grievance process with an alleged perpetrator. They need to be supported equally as well.

I mean, you think about the likes of suspension letters that go out to employees that say, "You're not to contact any of your colleagues. You're not to attend the premises", that could be all quite isolating.

And I think that's where, really, we've noticed the increase for these sorts of ancillary services that are in place and that you can make referrals to, or you can advise employees as to where they can get assistance, sometimes even if it's just to talk to somebody about what has happened.

There definitely does need to be protections put in place, particularly for the active bystander who might be fearful of reprisal.

And thinking more so outside of the office-type role, but maybe in a factory where there's a large number of people, there maybe are fractions within the organisation already, and you would be concerned about reprisal and fear and events taking place outside of work where there's retaliation and things like that as well.

I think you need to know your organisation and you need to act appropriately and in accordance with that, or you'll end up with a claim lodged by the active bystander then as well, which is going to be further problematic and further hassle with it all.

So, yeah, I think the key has to be that you're not going to prejudge any situation either. If there are suspensions, they are precautionary. You're not going to find somebody guilty of an offence before you've completed a fair and rigorous investigation. It's important that you do sort of maintain your position until you're at a point that there's going to be an outcome issued.

And again, I don't ever think it's a good idea just to simply send an outcome in a letter to somebody. I think you bring the person in, and you speak to them face-to-face, and you explain the position. Not always easy to do, but it is the best way in order to do it, and it protects you as well in case something does go awry down the line.

Christine: Seamus, you touched on this a bit. So, on suspension, what is your view on precautionary suspension when you have an allegation of sexual harassment? Would you suspend the alleged perpetrator?

Seamus: I mean, I think that the code of practice around suspension contained in the disciplinary and grievance policy and procedure, you have to look at everything in the round. You can't just jump in and say, "It's a suspension". Suspension should be used where the continued presence of the person would put the investigation or anybody else at risk, or alternatively, where that's going to impede or prevent you being able to carry out a fair investigation.

Suspensions are precautionary, and they are not punitive. They're not seen to be a punishment. They are simply precautionary, and the employee is entitled and receives their full normal salary whilst they're suspended. But it can feel punitive, absolutely, if you're the person that's being put on suspension.

I think suspensions need to be . . . you need to be careful about putting a suspension in place because sometimes a person can say, "Well, look, they've suspended me, they found me guilty, they don't want me there". And so you do need to explain that it is precautionary.

I think you do need to look at the circumstances. If you have a big organisation and you can take one employee and transfer them to another department where they will not be in contact with the person that's alleged the allegations, that's a possibility you might not need to suspend. It also depends on the severity of the allegations that have been made.

It's not always a straight dive in to do it. I think that you do need to give careful consideration to it, but if you're satisfied that suspension is the right route, it's not punitive, it is precautionary. As long as that's explained and set out in writing to the person . . . And then you keep it under review.

Christine:  Yeah. So, you can't say every allegation of sexual harassment you must suspend. It's going to depend. There's a whole scale of sexual harassment, very high-end and much lower down. Obviously none acceptable, but you'd have to agree at that really before you think of suspension.

Seamus: Yes. I think certainly if you ended up in a tribunal and you had to justify your position, you would be saying, "Well, look, it wasn't that I just said to suspend immediately. I looked at what other options were there, but there weren't any", or, "That wasn't going to be feasible because we didn't have the resources in order to be able to do that".

So you do need to think about these things around it. You can't just jump in and say, "Suspension. Done". It's not as clear-cut as that.

Christine: Yeah. And we've got a question here about anonymous complaints. So they're saying they had a situation where a witness didn't want to be named due to retribution outside of the organisation. What's the best way to deal with that, Seamus?

Seamus: I mean, I have been on tribunal cases where there have been disciplinaries and dismissals where the names of witnesses are not provided because of reprisal. And maybe not so much now, but maybe back in the day, whenever there was a more serious concern around all of that. But there are still circumstances that arise whereby it is not safe to do it.

I think, again, that's just a big justification to the tribunal, because you are losing an edge of fairness with that where you're not presenting the person or saying, "This is who was there. This is who has supported the allegations", or, "This is what they have said". You are losing an element of that. But when you're justified in not doing that, I think that you proceed on that basis.

It is a tricky one. The view would be to make sure that you take advice around those circumstances.

Christine:  Brilliant. Thank you very much. Thanks, everyone, for your questions.

Seamus, I'm just noticing the time. Do you want to step in and tell us anything about the reasonable steps that you were . . .

Seamus: Yes, just a sort of recent case there. This was a case based in England. It's Campbell v Sheffield Teaching North Hospitals NHS Foundation Trust. It's a 2025 case. It was originally a tribunal case, and then it went to the EAT. And it's just around the position with preventative steps for an employer to take.

We sort of dealt with that at the start, that you make sure that you're clear about your expectations. You have your policy and procedure, your training, and that that's all kept up to date.

This case of Campbell involved . . . Mr Campbell was the branch secretary of UNISON, and he had an office within the hospital there where Mr Hammond worked. And Mr Hammond had been a member of the union, but for some time he didn't want to be a member of the union anymore and pay a subscription.

There was a bit of argy-bargy around this, ultimately. And during a discussion, it turned around that the union continued to take subscriptions from Mr Hammond's pay, and when he spoke to Mr Campbell about that, there was a dispute that arose, and there was a racial slur used at the time of it.

Now, ultimately, the tribunal found that because it was a trade union matter, it wasn't getting involved and it wasn't the same way that they would normally deal with it. But they did give helpful guidance around what they said were reasonable preventative steps.

So, what the tribunal said was that the employer had taken all reasonable steps to prevent racial harassment within the workplace, and then the Employment Tribunal upheld the tribunal's decision following on.

And some of the things that they said was that there were induction sessions for all employees where acceptable behaviour at work was addressed and core values of affording dignity, trust, and respect to everybody had been emphasised.

At annual performance assessments, again, matters had been addressed around core values and what the expectations of the employer were.

There were posters placed up in the work areas that reiterated the values of the trust and that there had been mandatory training, and the mandatory training had been every three years. This was small groups, and it promoted a positive attitude towards equality and diversity by showing respect for others, valuing people's differences, and treating people with dignity.

And adding in all those layers, the tribunal found that the employer had taken as much reasonable steps as they could in order to prevent.

So, that shows the importance of if you do get into difficulties and you do get a tribunal case brought against you, but if you have prepared yourself, if you've prepared the organisation, if you've done your induction training, throughout the year you've brought to the attention and the mind of your employees what the expectations are, that you've continued to promote it by the use of posters or other materials that are in the workplace, and then there was mandatory training that took place . . . and this was good, solid, informational training that took place . . . I think that stands you in a steady way with the tribunal.

If you're able to go to your tribunal and say, "We did all we could. We couldn't do any more" . . . Now, tribunal will likely probe and challenge that. I would absolutely expect that. But you're certainly putting your best foot forward if you've sort of followed that process.

That's where I think the training of your staff . . . and that has to come from management down. It might be different training for management than it is for other staff members, but that's key, I think, to surviving that argument within the tribunal.

Christine:  And Seamus, could you just tell us the name of that case? Someone's wanting the full name there.

Seamus:  Yes. Sorry. The case is Campbell v Sheffield Teaching North Hospitals NHS Foundation Trust 2025.

Christine: That's an English EAT case?

Seamus:  It is, yes.

Christine:  Brilliant. Thank you very much. Thanks for that, Seamus.

I'm just going to round up, really, with what I think are my three takeaways from this. So, firstly, silence is never neutral. When people witness bad behaviour and say nothing, it sends a message that it's acceptable. Active bystanding is everyone's responsibility, not just HR's.

Secondly, the law expects more than good intentions. Having a dignity-at-work policy is not enough. Northern Ireland tribunals will scrutinise whether employers took genuine, up-to-date, reasonable steps to prevent harassment. And that means being able to demonstrate action, not just intent.

And thirdly, training turns awareness into action. Knowing that something is wrong and knowing what to do about it are two different things. So structured, regular training gives employees the confidence and the language to intervene effectively and gives your organisation a defensible position if things do go wrong.

If today's conversation has got you thinking about where your organisation stands in this, we've recently developed an active bystanding eLearning course designed to give your people practical skills, not just awareness. There's a link in the chat now, so please do have a look. You can get a free demo of that. If there's anything we can help with, please do get in touch.

And please remember you can also head over to the Legal-Island Hub to get your 14-day free trial to access all the quality materials. You'll be on there. Seamus does some writing for us. There's a section called "Seamus Says", which summarises lots of your questions that are asked on Employment Law at 11. So it's really worth a look.

And don't forget you can catch up with me and Seamus as a podcast. We are on Spotify, Amazon Music, and Apple Podcasts.

If you miss us and you want to get in touch on LinkedIn, you can find us on there. There we are. If we worked for Disney, that is exactly what Seamus and I would look like. So, drop us a line on LinkedIn. It would be lovely to hear from you.

But have a lovely Friday, enjoy your lunch, and we will see you next month.
 

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