Register for the next free webinar in our Employment Law at 11 series, during which Seamus McGranaghan, Director at O'Reilly Stewart Solicitors, and Christine Quinn from Legal Island will discuss:

• As are easing at pace in England, NI prefers a more cautious approach. So, what does the easing mean for organisations here in NI? We discuss mask-wearing, self-isolating and who stumps up the cost for tests.
• Are you thinking of implementing a Fire and Re-hire policy in your organisation? A cautionary tale from the GB case of USDAW v Tesco Stores Ltd [2022] should help guide you.
• The Fair Employment Tribunal is unique to NI within the UK – but do you know the law? The recent case of Campbell v Castlereagh City Council [2022] shines a light on third party harassment in fair employment cases.

The Recording

Transcript

Christine: Good morning, everyone. Welcome to March's edition of "Employment Law at 11". You're very welcome. It's actually a really nice sunny day here in Belfast, so I hope you're getting a bit of sunshine. We certainly all need it.

So today we are going to be talking about in England lifting. COVID still exists, believe it or not. It's still out there despite it not being in the news at the moment. We're also going to be looking at two different bits of case law, one about fire and re-hire and one about third-party harassment.

So, just to introduce ourselves, we've got Seamus McGranaghan here today, as always, employment law expert over at O'Reilly Stewart Solicitors, and me, Christine Quinn. I'm one of the L&D officers here at Legal-Island.

So first things first. We've got a bit of a big announcement at Legal-Island today. We have published our Comparative Law Table. Those who were at the Annual Review back in November would have seen a smaller version of this. Today we have launched our three jurisdictions Comparative Law Table. So it compares ROI, NI, and GB law. It's being launched today. It is completely free of charge on our website, so please do check that out. It'll be in the email that follows this webinar as well.

It's really useful and it's been a bit of a labour of love here, so please do use it, and we hope you find it useful. It certainly explains the bags under my eyes, put it that way. But please do use it.

Poll Results

So let's have a look. We'll get you guys doing some work first of all on some polls. "When and if the law changes on isolation here in Northern Ireland, will you still seek to exclude COVID-positive employees from your workplace?" You could click yes or no there. Get everyone voted. Okay. It looks like everybody has pretty much voted. Let's have a look at the results.

So we've got a resounding 64% there saying yes, which is unsurprising, I suppose. But we do have quite a few "can't decides" and nos.

Seamus, what are your thoughts on that? I know, over in England, there were quite a few employers saying that they were just going to have a bit of a free-for-all.

Seamus: Yeah, it's interesting. I mean, 64% is a good number that are saying that they will still require their employees to self-isolate. And lots of issues could arise out of that going forward, but I think that's encouraging. And it's probably a measure of where our minds are at.

I suspect, Christine, as we move forward through into the spring and into the summer months, that you may see a change in those figures. I think probably that we're still very close to all of the information about COVID, and the worry, and the concern, and the anxiety that it has created.

But saying that 23% is . . . we're looking at a quarter there almost where people are saying no, that they're going to permit people to come in to the workplace. Interesting thoughts just in and around that. If somebody does come in with COVID, will it have an impact upon the continued operation of a business if a number of people come down, or a number of key people come down with it?

We know that it affects people very differently. Some people get very mild symptoms and some people get heavier. Maybe we're not stretching into the hospitalisation element, but it still seems to be putting a lot of people out.

I know that even within my office last week, we had somebody that has had a very bad run of it, and they haven't been able to work. They've had to stay in bed and try to move from it.

So it is interesting just the views that we get there. And the "can't decides" at 16%, for me that's interesting, also.

Christine: Yeah. I suppose people are kind of waiting to see. I think we do have the benefit of waiting to see what happens in England. They've jumped first, so we'll be able to assess what happens from them.

So let's have a look at our next question there. So this is just on our Tesco case we'll be talking about. So, "Have you or would you implement a fire and re-hire policy in your workplace?" You could click yes or no.

There was quite a bit of talk around kind of the easing off of restrictions and employers almost forcing people back into the workforce a bit. And there was a bit of talk around fire and re-hire at that time.

So let's see what people think. It looks like everyone has voted there. Let's have a wee look. So we've got an 84% saying no, and we've got our 16% saying yes. Seamus, what are your thoughts on that?

Seamus: Yeah, not surprised at that. I think that the idea of fire and re-hire is scary for employers. They're worried about the implications of that, and they're worried about the fear of unfair dismissal claims. They're worried about morale. And it's a significant step to take. We'll get into the ins and outs of it later on whenever we're discussing the Tesco case, but I'm not surprised to see that.

And in my experience, it's not something that you do get a lot of. And there is that requirement to consult with employees in relation to . . . I mean, generally, the fire and re-hire will come around whenever an employer is seeking to amend the employee's terms and conditions of employment. And the work that is done through the consultation process, in the majority of cases, does resolve those issues that arise. And there is always that requirement to consult about those changes in advance of any step to fire and re-hire. So I'm not surprised by that at all.

Christine: Brilliant. We'll get into a wee bit more detail later on, no doubt.

So final question. This is a question that I want to know what you think because the second case we're talking about today I find quite surprising. So, "Are organisations vicariously liable for third-party harassment relating to religious or political affiliation here in Northern Ireland?" If you could vote yes or no.

I spent a lot of time practising in England, so fair employment is more of a mystery to me, I must admit, than other types of discrimination law. So that's really why I picked the case to talk about because I find it very interesting.

So let's have a look to see what people think. Seventy-four per cent say yes, they are vicariously liable. So I'm pleased that I am not in the minority on this one. Seamus, I know you'll go into a lot more detail later, but what are your initial thoughts on that?

Seamus: Yeah, it is interesting there would be almost a natural view. If our audience is mainly coming from a HR background or a legal background, there's always that very cautious approach whenever you have a third party that comes into an organisation and the employer feeling the need to protect its staff, which I think is a positive thing that we're seeing there with the 74%.

But we'll get into a chat a bit later on about what the position really is around third-party harassment, specifically looking at religious and political affiliations.

Christine: Yeah. That's great, because I was quite surprised that the answer is not quite as simple as you would initially think. So that's brilliant.

So a wee reminder, everyone. Please do drop in your questions to the chat and I'll pick them up and pass them to Seamus as and when it's appropriate. So do drop them in there.

If we get into our first topic then. So, as are easing at pace in England, Northern Ireland is preferring the more cautious approach. Now, is that because we're more cautious, or is it because we don't have an executive? You decide. So what does this mean here in Northern Ireland?

Seamus, first question to you really, I suppose, is what's going on in England at the minute? What have the announcements been in a nutshell, I suppose?

Update on UK Covid Restrictions

Seamus: Well, you can go on to the government website, and it does helpfully give you an overview of the position in England. And there are little boxes to the left-hand side of the screen that allow you to go into Northern Ireland, and Scotland, and into Wales to do a bit of a comparative position.

But in general, what we have is we've had a large and significant relaxation of the COVID regulations in England. We did have our own relaxation here in Northern Ireland.

And I suppose the interesting point for me was that that happened very quickly. There was a bit of confusion, it appeared. It appeared that the health minister obtained legal advice to say that he wasn't able to make those amendments, and then very quickly over a weekend, it appeared then that we got a determination on the Monday or Tuesday that the restrictions were, in fact, being lifted here in Northern Ireland as well.

But certainly they are more at an advanced stage in England, and where we're looking at is that the government in England have published their plan for living with COVID-19, which really sets out . . . You can go into it. It's a lengthy document. Lots of information contained within it, lots of graphs, lots of charts.

But you can see where the government are coming from in relation to the fact that we have a high number of vaccinations given. We do have a milder form of COVID coming through, the Omicron, and the fact then that there's this encouragement. And it runs right through, really.

Our starting point in England is from 24 February, where you're not legally required to self-isolate if you test positive for COVID-19. The guidance does say that you stay at home if you can and avoid contact with other people, but that is guidance only.

And the requirement is that you stay at home for at least five days under the guidance, and that you continue to do so until you've got two consecutive negative lateral flow tests. So that's the position.

Also, there's no requirement in England any longer to take daily tests or to be legally required to self-isolate following any contact with someone who's tested positive, either in your household or what you would have got through on the track-and-trace system.

And then in addition to that, the Test and Trace Support Payment scheme in England will end, or I should say it has ended on 24 February. You can still make the claim in England up until 6 April. This was this one-off payment of £500 if you were on a low income, if you were having to self-isolate, and that you weren't able to attend work and things like that.

In addition to that in England, what we do have is we have the incentivised or the increased aspect of the SSP rules amending on 24 March. They will be removed. So we know at the minute that there's the ability to recover for employers through the SSP scheme, and also that it would start on Day 1 rather than Day 4. That has been removed.

And then on 1 April, which is really the key date for me going forward with very much all these complex employment issues that I envisage are going to arise, is that on 1 April, the free COVID-19 testing will end for everyone. There will be new public health guidance that will be issued. And really importantly, employers won't have to consider COVID-19 in their health and safety risk assessment as and from 1 April. So you can see . . .

Christine: It feels huge. I mean, considering we've had two years of being distanced from people, of tests and masks, health and safety checks every five minutes, it just feels huge.

I suppose the big one from what I can see is going to be the testing. I mean, my other half, every time he goes into the office, has to do a test and log it with HR. So I'm sure his company is not alone in that.

So who's going to work out for these tests? Is it going to be a case of the tests are part of health and safety, like requiring people to wear a hard hat or steel toe cap boots, and that the employer is responsible for that? Or because it's not mandatory in law, is it the employee that needs to fork out for it? So who's paying for that?

Seamus: Yeah. Well, I think that that's right. We're going to have the removal in England of the testing programme. My understanding is, and I could be wrong on this, but you could be talking up to £25 in order to buy a set of 7 tests, whether it's from your local chemist or where you obtain that from online even. No doubt some of those online facilities will be selling those kits, as well.

But they're not cheap. And if you have employees that are going to be required for work purposes to test whenever they come into work . . . And if you think in and around, Christine, some of those close-contact businesses that are there, the factories and hairdressers, even in hospitality, if you're going to have a requirement to continue to test . . .

I think the big starting point for a lot of employers will be just the risk assessment that needs to be done. And even though there is this lifting of the public health guidance and employers not having to factor in COVID-19, you still are obliged under the legislation here in Northern Ireland . . . Certainly our Health and Safety at Work legislation. That's the 1978 Northern Ireland order. It still requires an employer to provide a safe and healthy place for employees to work in.

And you could imagine that some employees, over the spectrum of risk, whether they're CEV or living with people that are or CEV, will have a question mark over whether their place of work is going to be meeting the requirements of a safe and healthy place to work.

If there are still concerns around COVID-19, and particularly if there are employees that are presenting with symptoms of COVID-19 . . . Now, we know that that's very difficult because what's a cold and what is COVID-19? What is the flu and what is COVID-19? And issues arising in the workplace of, "Am I comfortable sitting next to someone that has symptoms, and I am CEV, or I have a partner or someone that I live with that is CEV?" So you can imagine that there's going to be lots of those questions.

I mean, bringing the question back to the issue about testing, I would have thought that in certain businesses and in certain industries, testing is going to be important. It's going to remain. Specifically if you're working in a healthcare setting, if you're working in a nursing home, I don't see that there's going to be a sudden lifting of testing happening there.

And I certainly do think that where an employer is requiring testing to happen, the employer is going to have to absorb the costs in relation to that. I don't think that it would be fair to make that the responsibility of the employee to provide a negative test. If the employer was insisting that they had to do so, I can certainly see that that would be the responsibility of the employer.

And if I move it out even further in the thought process, I then think about the issues of consent. As an employee, am I happy to take a test? Certainly, I don't think that an employer can force an employee to take a test if they are saying that it's a requirement.

But it does open the door to serious issues that may arise in relation to what happens to the employee that refuses. Are they permitted to attend work? What does their contract say? What does the policy say? What will they be paid? Will you be flexible in your approach? Will you allow working from home if they can work from home? Will you allow them to take holidays if they can't work from home? All those sorts of alternatives to be looked at.

And again, if you're operating the business and you're saying, "No, I do require you to come into work. And even if you're presenting with symptoms, you don't need to take a test, but I'm going to permit you to attend work", what about those employees then that say, "I'm not going to work in the office if there's somebody in that is displaying symptoms"? Are you going to permit those people to work from home? What if they can't work from home? What does your sick pay scheme say?

So I think what we have is an opportunity here to prepare for what might be coming down the line. And for me, a big part of that preparation is looking at the policies and procedures that are in place. And you have an opportunity now to revise those policies and procedures, and consult with your staff about those complicated factors.

But I have no doubt, Christine, that there are headaches coming down the line for employers, and headaches for the likes of you and I, as well.

Christine: We've already got a few questions coming in. Seamus, so people are obviously getting their thinking caps on already. Someone is asking,

"Is this just for England or does it apply to Northern Ireland at the minute?"

At the minute, the big changes are in England. But I suppose Seamus and I are looking at it as England are the testing ground. We can see the problems already starting to arise in England. So forewarned is forearmed a wee bit, so let's take the lessons from England.

We've got another question here. Sorry, it just moved there. Bear with me one second.

"If a company does not provide company sick pay, how can an employer insist an employee who has tested positive remains off work to isolate and protect other employees?"

They, presumably the employee, "will be significantly affected by the reduction in their wages". I think that is a very fair point.

Seamus: Absolutely.

Christine: And it's one of the headaches, I suppose.

Seamus: Yeah. And that's the difference of . . . Are we reverting back to a position whereby somebody says, "I'm unwell. I'm displaying symptoms of a flu, or a cold, or COVID-19, but I feel fit in order to attend work. I'm available to attend"? And then the onus has been shifted to the employer. What's the employer's policy in relation to that?

I think we probably are at a point where we have encouraged people over the past two years that if they are unwell, not to attend work. Now, we've lost all our benefits in relation to . . . The statutory sick pay is going to go. The furlough scheme was of assistance of that as well, that you could have people off sick and on the furlough scheme.

But now you're going to get a very exposed position whereby an employee is likely going to say, "There's nothing legally stopping me coming into work". But the problem is that somebody comes in and then they'll spread.

We do know that the issue with COVID-19 is that it's very infectious, and each of these different variations that we get seem to . . . That's the one point that seems to be consistent, that it does seem to appear to be getting more infectious each time. Even though with Omicron, we know that it's not as a bad dose that you will get. It's milder. But this thing of being more infectious keeps happening.

It really is going to have to be an examination, and I do think risk assessments will need to take place. I think a general risk assessment is important to do at this stage.

That query in and around, "What is the position in Northern Ireland?" The position in Northern Ireland is that you're still required to self-isolate at the minute in Northern Ireland. You no longer have to wear a facemask. But I do think that's a position that the employer can impose following a risk assessment, if an employer deems it necessary for facemasks to be worn and there is a legitimate reason for that and a justification for it. You need to thread that through your health and safety policy. And your policy should be joined up.

But certainly, you can understand employees saying, "I don't like wearing facemasks. I'm not comfortable wearing them. And I don't want to wear it". So a lot of employers, from what I see and what they've done in England, they've said, "Well, look, we're going to give you the choice to wear a mask or not, and we're going to ask people to respect that choice, also".

But certainly, I do think that if you're going to have 20 employees in for a piece of training in a small IT room, the guidance certainly at this point is that where there are enclosed spaces, you should wear a mask. And that appears to be the position in England. That will be up to 1 April.

I think that as it stands at the minute, we know as well that there appear to have been this other difficulty where they've said that the self-isolation piece in Northern Ireland was never a legal requirement. It was always just guidance.

And I might just need to correct what I said there previously about the requirement to self-isolate, because it is guidance.

But certainly, when it's guidance there, I think it's appropriate. Certainly, whenever you look at it within the guise of the Health and Safety at Work '78 order, it's important to follow the guidance that is there.

But there are so many issues, I think, that could arise, Christine, going forward. I think we will have to take a look at what is happening across the water and hopefully learn the lessons. I just hope that we get the time to do that.

Christine: Yeah. We've got someone here asking,

"Can an employee claim from an employer if they allow someone into the workplace and they subsequently get COVID?"

I think it would be under health and safety legislation. If you're talking about from a personal injury perspective, it's going to be causation. There's a global pandemic. Where did you pick it up, work or Tesco? But I suppose from a health and safety perspective, they could bring a claim saying, "You failed to protect me by having a policy of a free-for-all". Would that be right?

Seamus: Yeah. I would agree with that. I mean, I do think that there is the potential for claims to happen. And particularly whenever we think around the issues of long COVID, where people have been out of work for over 12 months because of long COVID, there is a loss accruing there for those individuals. And if an employer is found to have failed in their health and safety duties and responsibilities, I could absolutely foresee an employer being held responsible.

I do think that you'll get to a point where your insurance company will be providing you with guidance, and it'll be similar to if you slip on spilled milk in your local shop. What the court will examine will be the cleaning regime that is in place, and how often the premises are clean, what the policy and procedure is. You could almost see that happening in relation to employee claims.

It may be back to that idea of employers being respectful of what the guidance says, but still giving the option for employees. So maybe having things like hand sanitisers there, creating certain spaces for cleaning and changing, those sorts of things that we've seen being implemented. But I do think it will very much depend on your business and the industry that you work in.

Christine: One final question, Seamus.

"When do the SSP rules change with regard to payment from Day 1, going back to the three-day waiting period?"

Seamus: Certainly, in England, the position is that that changes from 24 March. I'll just need to double-check the position here in Northern Ireland. I don't know off the top of my head on this, unless you know.

Christine: I don't either, Seamus, to be honest. It's one of those questions of can the assembly do stuff like that, administrative tasks like that? I don't know. But yes, it is one that we will look into and we'll drop you all an email with the answer. I suppose that would be the best way to do it, because I don't know the answer either.

Seamus: Yeah. I'll get some clarity on that and then we can send out that information.

Key Takeaways

Christine: No problem. So just aware of the time here, Seamus, shall we have a look at our . . . Well, first of all, can you give us three key takeaways from this session? I know it's not an easy one to sum up in three.

Seamus: I think the key takeaways are, number one, to prepare. There is time here. Let's see what happens across the water. Let's think ahead of the issues that are going to come up and going to arise. And those could be issues in relation to the issue around testing, issues around concerns of people that don't want to return to the office, people who do want to return but are displaying symptoms. All those sorts of things need to be thought about.

A policy needs to be put together. And that's the second one, is looking at amendment of your policies and procedures. Get ahead of the game. So, with time to prepare, start the preparations now. Look at the amendment to your policies and procedures.

And my third one is really communication. I think you do need to communicate with your staff. You need to have those conversations with staff where you know that they are CEV, or that they're living with people that are CEV.

You'll have garnered a lot of information over the past two years, and you probably will have a fair idea where someone is going to be fairly relaxed and where someone may be very concerned about the next steps.

So do work on your communication. If you are proposing amendments to policies and procedures, or the introduction of policies and procedures, do get those out to your staff. Open the door up to consultation. But I think key to that is to let your employees know what the position is going to be if they haven't returned to work, or what it's going to be going forward.

It's difficult at the minute because we don't have all the information yet. We don't know what the timeframes are going to be for Northern Ireland, but it does look to me that we're pretty much going to follow suit at some point. So I think now is the time to get ready.

Christine: Brilliant. Thanks very much, Seamus. That's really helpful.

USDAW v Tesco Stores

So we're going to have a look at a couple of cases now. So the first one is USDAW v Tesco Stores. So this is an important and interesting one if you're thinking of fire and re-hire in your organisation.

Now, just to let you know, Donal, who is our regular listener, emailed me with a suggestion for when we're chatting about case law. So Donal suggested we put the full citation up for you guys. So there is a slide with the full citation there. It should appear shortly, hopefully.

Also, if you want to have a look over where you see your question box, there is also a little hand-out box. And if you click on that, you'll be able to click through, and it'll be the link that should get to the Legal-Island case review that was done by Jason Elliott on both cases, and also the full case as well.

Hopefully, that's helpful. It shows we do listen, so please do get in touch if you've got any other suggestions.

So, Seamus, what happened in this case against Tesco?

Seamus: Well, a little bit of background on the case. I'm not going to go into too much detail because those materials are available, and people can read those. But essentially, period of 2007 to 2009, Tesco agreed to pay staff what was known as retained pay.

They were carrying out a reorganisation and a relocation of staff working in their distribution centres. And in order to avoid losing staff, this was the incentive that they offered, was this retained pay and conditions of employment that Tesco brought in at the time. So it was a change that happened. It wasn't just a one-off payment. It was a payment that was being made and the contract of employment had been amended.

Then we get to 2021, and Tesco seemed then to remove the retained pay that they had offered at the time. So it had served its purpose, so to speak, and Tesco then were looking to withdraw this additional payment that staff were getting, this retained pay.

And what they did was they put out through consultation, they said, "You have a choice. You can either take a lump sum of 18 months' retained pay, or alternatively we can fire and re-hire you on new terms and conditions".

So it did feel like a little bit of the usual position of somebody holding a gun to somebody else's head. "In the one hand, you can get a payment equivalent to the 18 months, or alternatively if you don't work with us, then we'll pull the trigger and we'll go down the road of fire and re-hire".

So, in response to that, then you had USDAW, which is the trade union, that made an application to the High Court. And this is an English case. They made an application to the High Court. And what they said was that they sought a declaration that affected employees' contracts were subject to an implied term preventing Tesco from exercising the right to terminate for the purposes of removing the right to retained pay.

So this was just a section of the contract that they wanted to take out. And that's important. It wasn't a whole entire revision of the contract. It was a section that they were looking to amend.

So they wanted the court to confirm that this wasn't something that Tesco could do. And in addition to that, they wanted an injunction preventing Tesco from terminating the contracts of employment. So they were saying, "Number one, we want a declaration that you can't terminate on the basis of this clause. It's in the contract that that's unfair. And two, we want an injunction which prevents Tesco from doing it".

And ultimately, the High Court then found in favour of USDAW and granted relief on both points. And what the court said was that there was an implied term that Tesco staff could not be fired and then re-hired to remove the retained pay element that they were receiving. They said that this was because the retained pay had been promised in language that clearly expressed its permanency.

So, at the time when Tesco were looking to give the carrot, looking for employees to agree in relation to the restructure and the relocation of their distribution centres, they did provide this retained pay. But they had done so on the basis that this was permanently amended in the contract of employment. It wasn't something that was just a temporary basis.

And USDAW were then coming back and saying, "Well, look, you gave it on a permanent basis. This is unfair for you now to seek to withdraw it. The employees have had the benefit of it for over 10 years". And what they were saying was specifically, "It's unfair for you to use the fire and re-hire ability to do that".

Ultimately, the court agreed. And what the court did was they granted the injunction that USDAW had requested, and that's because they said that damages wouldn't have been a sufficient remedy.

So you're faced with this idea that through the consultation process, Tesco will say, "Look, the package here is . . . the compromise is that we'll give you 18 months' equivalent to your retained pay, but in exchange for that, it's written out of your contract". And essentially, the employees felt that that was unfair.

So it's an important decision because there is the ability in law for the employer to fire and re-hire. And this is setting the position out where the court is saying, "Not in all circumstances is that necessarily fair".

Christine: Yeah. You can't have your cake and eat it. They were wanting to use it to their advantage when it was suitable for them. And obviously, a lot of employees stuck around because it was such a great contractual clause, kept the loyalty, which was what they wanted. And then they thought, "Hold on a second. The economy is not doing quite as well as we thought. How can we cut some costs?" And that looked like the easy target.

But it's interesting that the court implied a term in there, and I suppose the strength of bargaining position would have been taking into account it's someone's livelihood, whereas Tesco is a big corporation. They don't want bully-boy tactics, I suppose.

Seamus: Yeah. And when you think about the aspect of the retained payment, as it's called, and then when we think about all of the ways that there has been such an extension to what's considered our normal pay when we come to holidays and those sorts of things, you're right, it is somebody's livelihood. There's a clear dependency.

The reality was that the retained payment had been made. There was an expectation for those members of staff that that was something that they were going to continue with, that it wasn't something that was temporary in nature. There was a permanency built into it.

It's interesting, and specifically whenever you look at, Christine, the Labour Relations Agency's Code of Practice that they have, there is a Code of Practice on agreeing and changing contracts of employment.

Now, that's just recently been updated in May 2020. And there's a section in that that talks about the failure to reach agreement, and what can be done about that. It does say that if an employer has been unable to reach agreement with employees on a proposed change to a contract, they may decide to either drop the matter or to dismiss and re-engage employees on the new contract of employment.

Now, it's not straightforward. It's not just a matter of doing that. There are various things that have to happen, particularly in and around the idea of consultation and collective redundancy consultation processes kicking in then as well.

And then the use of the statutory disciplinary and dismissal procedure, in what circumstances do you have to use that if you're going through a fire and re-hire process and where you don't, because there is an exemption in some cases where you don't have to.

But ultimately, I think if we're looking at takeaway points in relation to this, and going back to our poll figure, which was significantly saying that there was no intention to fire and re-hire, it should always be a last resort. You should have exhausted all of the prior options before you pull the trigger in relation to fire and re-hire.

And in addition to that, it's essential that there is a robust commercial reason for why the change is required. Some of the commentary in and around that will also say that that robust commercial reason needs to be transparently communicated to the affected staff. So they need to have an understanding as to why there is a need to remove a term.

And certainly communication has to be key. Where you are working in an organisation that is unionised or that there's trade union involved, you're making sure that there's that collective consultation about it.

But essentially, usually, and certainly what the LRA Code of Practice will say, is that you're looking for some form of compromise happening between the parties whenever you're looking at amendment to terms and conditions.

But look, we have a strong indication from the courts here that it's just not going to be as straightforward maybe as what it was perceived previously, that you can just issue a dismissal notice and follow it up straight away by an offer of a new contract on less favourable terms.

Christine: Yeah. Brilliant. Just for everyone, Rolanda has dropped that LRA guide into the chat there if anyone wants to have a wee look at it.

Got an interesting question.

"Even if it wasn't written in as a permanent term, given that the payment had been made for such a long period of time, would custom and practice kind of kick in?"

I would say yeah.

Seamus: I would agree. Yeah.

Campbell v Castlereagh City Council

Christine: You would be in a sticky wicket anyway, really. Time is marching on, Seamus. Time flies and all that, so let's have a look at our next case. Now, this is the one I find really interesting, Campbell v Castlereagh City Council. It's that third-party harassment question that we greeted you with at the start. So let's find out what the position is then. So what happened in this case, Seamus?

Seamus: Particularly, Jason Elliott has done a really good overview of this case. And if anybody was listening to the podcast earlier there in February that Emma McIlveen had also done, this was a case that was dealt with by Emma as well. But the essentials here that you're looking at are issues of third-party harassment.

Background to this case was that the claimant was Catholic, but had no political affiliations or anything like that. What she said was that by virtue of her forename, it would have been assumed that she was nationalist. So Kiera Campbell was her name.

She wasn't directly employed by Castlereagh and Lisburn City Council. She was actually employed by Grafton Recruitment, and she worked as an agency worker. She was a receptionist then at the golf club, which was Castlereagh Hills Golf Club.

And what she alleged was that she was harassed contrary to the Fair Employment Treatment (Northern Ireland) Order, known as FETO, as a result of the behaviour and treatment that she'd received in relation to one of the members of the golf club, or the golf course. But essentially, that person was referred to as Mr A.

There were two things that had taken place. There were sort of verbal comments that had been made, and which the claimant said were made in an aggressive manner to her by Mr A, one related to an incident around the Union Flag, and then the second incident concerned her complaint about that incident that she made to the respondent and the remedial action that she sought. She sought an apology from the member, and she felt that her employer should have facilitated the apology.

The other thing was that the alleged harasser, Mr A, wasn't an employee or a worker of the respondent. So that's why we're looking at this third-party harassment. And the claimant had reported both matters to the respondent and alleged they had failed to deal with her complaint.

Now, interestingly, the respondent did concede that the conduct of Mr A fell within the definition of harassment, but they argued that they shouldn't have been held liable for that harassment under FETO.

And ultimately, the claimant's claims . . . Now, she was claiming harassment, direct discrimination, and victimisation on the grounds of religious belief and political opinion. They were dismissed by the tribunal. The tribunal did find that the claimant's complaints against the respondent in relation to the handling of her claim were well founded. There are criticisms of the respondent, but ultimately, her claims were dismissed and failed.

I mean, this is a really comprehensive judgement. I have it here. It's available on the tribunal's publications element of their website. It's a really good judgement to read in relation to it sets out really well all of the legislation and all of the relevant case law, and really helpfully. And just tying in with your comparative piece that you've been working on, Christine, as well, the judgement does set out the law in England.

Now, we know that there's a difference when it comes to discrimination law in England and Northern Ireland. In England, they have the Equality Act of 2010. And what it sought to do was to wrap up all of the discrimination-type legislation into one piece of legislation. We do not have that in Northern Ireland. That's an issue that arises.

Christine: Unfortunately.

Seamus: Yeah. And it arises because of our sort of background here in Northern Ireland. But we do have all of the separate pieces of legislation.

The query, I suppose, is ultimately does the decision mean that an employer isn't responsible for the acts of a third party in the workplace? And what I would say is it absolutely doesn't say that.

Let's take it back to the point when we talked in the previous question about the Health and Safety (Northern Ireland) Order of 1978. An employer does have a responsibility for its employees in relation to the actions of a third party. So the person must be able to work in a safe and healthy work environment.

But this case was slightly different in the sense that the claimant in this one was self-represented. And if you look at Paragraph 63 of the judgement, and I think this is really helpful, the judgement says that for the claimant to establish liability of the respondent for the alleged conduct of Mr A, the claimant would need to show that either the respondent directly discriminated against her in its treatment of her relating to Mr A, or that the respondent's actions/failures to address her complaints against Mr A of itself amounted to harassment, falling within the definition of Article 3(a) of FETO.

And importantly, the judgement says that the claimant did not advance either argument, and reiterated this fact to the tribunal on a number of occasions during the hearing. And I suspect that that's the issue or the problem that arises for the claimant.

Christine: Yeah. I mean, it's still an odd one to me. I struggle to get my head around the fact that you are protected for sexual harassment from a third party, but you're not protected with something that, I suppose, historically has been a big issue in Northern Ireland. "Oh, your name is this", or, "You went to this school, so I will therefore make assumptions about you and make comment". I find it very odd that you kind of have to go a bit of a circuitous route to find that protection. Do you agree?

Seamus: Absolutely. And just to make that point, the judgement also does provide helpful clarification. Paragraph 65 of the judgement, the judgement does say, "In this jurisdiction, Northern Ireland employers can be held liable for the sexual harassment of its employees by a third party in specified circumstances", and refers to Article 82(c) of the Sex Discrimination (Northern Ireland) Order 1976.

We don't have time to go into it now, but in the case law that the judgement sets out, it does make that difference in relation to the legislation in England and GB under the Equality Act and our legislation here.
But the judgement does give deference and does say that there is a different position when it comes to sexual harassment in Northern Ireland. But the judgement does say that that in itself is telling, that there are specific protections built under the Sex Discrimination Order that are not contained in the other legislation that protects your protective characteristics.

Christine: So maybe the court trying to give the assembly a nudge, do you think, to sort this out?

Seamus: Potentially, yeah. I mean, it is a standalone position when it comes to sexual harassment in Northern Ireland, that there is protection for it. And I think maybe a few years ago Scott and I talked about that, as well, in one of our previous webinars.

But yeah, it's an interesting judgement. It's worth a read, particularly in and around just . . . It really sets out the legislative position and the case law coming up to . . . This is a decision from 2022, just issued in January, I think.

Christine: Brilliant. Thanks so much, Seamus. Believe it or not, we are coming to the end of our time. So there are Seamus' contact details if you want to get in touch with him, and my contact details as well. Please do drop me a line if you have any topics you want us to discuss. We do listen to you when you make suggestions, and it would be great to know what you want us to talk about in future.

I think the next slide here . . . yeah, Legal-Island services. We've got our Employment Law Hub, we've got our Events, and we've got our eLearning. "Employment Law at 11" is, of course, available as a podcast on Spotify, Amazon, and Apple, so please do subscribe to those and check them out.

And in the meantime, our next webinar is 24 March. I'll be having a chat with Ciara Fulton of Lewis Silkin. We'll be taking a bit of a deep dive into the Comparative Table that I've mentioned once or twice today. So please tune in for that.

And myself and Seamus will be back on 1 April, and that is no joke. We will definitely be there. It's not an April Fool's. You won't find a video of Rick Astley rather than me and Seamus. We will be here, so please tune in. Or maybe not. Tune in and see if it is a joke. But it would be great to see you there.

Thanks very much again, Seamus. And thanks for Rolanda dealing with everything in the background there.

Seamus: See you.

Christine: Brilliant. See you all again soon. Bye now.