Christine: So we'll get to the other poll question when the time comes, but let's move into the webinar proper. So the harassment and bullying at work, promoting an inclusive workplace. It's new guidance issued just last month, just in May. It was a great spot by you, Seamus. I'd have missed it if you hadn't pointed out to me, so thanks for the heads-up on that. So, Seamus, what's new about this guide?

Seamus: Well, the guide itself is an amalgamation of a guide between the Labour Relations Agency and the Equality Commission. And it's always great to get these guys through.

It seems, to me, that certainly we've seen developments in case law. There have been a number of reported cases over the last number of months where we have these issues of harassment and bullying taking place in work.

And there was the reported case then of McNicholl v Bank of Ireland & Cummins, which was widely reported. And I think some of the issues that we are seeing from the guide are reflective of some of the issues that were raised within that case as well.

So this was a case of sexual harassment, and this was a case where the claimant in the case was awarded a significant sum of just shy of £18,500. And there were a number of interesting legal points. I know that whenever we've done reviews of case law and things like that, this is a case that is widely commented on as well. But some of the issues that had arisen in relation to the case were about the importance of staff training, refreshment of policies and procedures.

So what we have really is an important piece of guidance that's come through from the Labour Relations Agency and the Equality Commission. It's entitled "Promoting an Inclusive Workplace", so the idea is that inclusion around all of the different pillars of employment.

In essence, what you have is that you have all of the different branches, if I put it that way, in relation to the employment relationship being brought together under the one umbrella when it comes to dealing with harassment.

And I think that's one of the key mentions and issues from the guidance, is that it's not just simply about having a couple of policies and procedures in place that you got off the internet at one stage, but these have to be living documents. They have to be documents visible for employees, particularly in and around . . .

Some organisations, whenever I'm providing them with advice and I say, "Well, can you provide me with a copy of your bullying or your harassment policy and procedure?" they simply provide you through their grievance procedure. And whilst that is helpful and whilst it's a starting point, there is a shortcoming then in relation to how you actually deal and manage with these very difficult and sensitive issues that come around.

Christine: Seamus, with a big case like the McNicholl v Bank of Ireland, is it worth kind of getting in touch with your HR team or somebody and saying, "Listen, do we need to look at the policy again? Does it cover this instance that's been pointed out in this case?" Is that worth doing?

Seamus: Yeah. I mean, absolutely. And it reminds me as well . . . I will lecture on the grievance aspect of the Employment Law Certificate with University of Ulster and Legal-Island. And part of that process, I do provide sort of precedent grievance procedure to go along with it, but I also provide a harassment and bullying policy and procedure. It just adds on that additional level for these specific circumstances.

And unfortunately, if you end up with difficulties with a tribunal case, this guidance is very helpful for employers, and it's clearly making the point that it's important to have those policies and procedures above and beyond what you would normally have.

So the other types of things that are new about the guide is that it does talk about the employer's duty of care. And it says importantly that it doesn't just sit with the victim or the person that is alleging the harassment, but it has to be inclusive. It's a duty of care that extends to everybody, including the victim, the perpetrator, and others.

You know yourself, Christine, that whenever you get these complaints therein, you often have to speak to the other workforce, the witnesses that maybe have come across.

And that itself creates a very difficult scenario, and sometimes a divisive and a divide within a workplace, but it also talks about . . . There's a reminder within the guidance of possible legal challenges that could arise as a result of these sorts of complaints, and why it's important that they are dealt with and treated appropriately.

The reality of it is that you could have subsequent claims arising, including discrimination claims, unfair dismissal, or constructive dismissal claims, breach of contract, and even personal injury claims that we've seen arising.

And it also gives us some good guidance in relation to protection against third parties. Again, we've seen this develop in recent case law where you're not just limited to the internal employees, but also if you have suppliers or even customers that have also maybe had issues of harassment or bullying arise. And again, that aspect that the employer has a responsibility there, also.

And it talks about while an employee can initiate a complaint of harassment or bullying, the employer can go ahead and initiate a formal investigation where it becomes aware of any potential issues of bullying and harassment.

 So you don't have to wait. And it's clear about that, that the employer doesn't have to wait until somebody makes a formal complaint. If the employer sees something happening or is aware through discussion or even gossip in the office, the onus is on the employer to start to investigate those matters.

Christine: That's really interesting, because I think a lot of the time, you do get calls from employers saying, "Well, we've kind of heard a rumour or whatever. But until someone makes a complaint, I'm not doing anything". And it's like, "No. You've got to get it in there early because you don't want the complaints".

You want to avoid that whole thing. You want to be seen to be nipping it in the bud. And it might actually be easier to fix at that point. Maybe someone just doesn't understand that that type of joke is inappropriate, and as soon as he or she is told, they'll knock it in the head and then your job is done, really, isn't it?

Seamus: Yeah, absolutely. And it is in and around that aspect as well of these things can be uncomfortable for employers to deal with, specifically where they think they're going to have to involve a number of people in the office. And sometimes they do involve sensitive and embarrassing things, and there could be an element of wanting to shy away from them, but it's the festering aspect and a problem if you leave it there.

I suppose the other thing that I think is helpful and interesting is that sometimes we do feel that whenever we get these issues that arise, we have to go in hard with it. We have to get into a really formal investigative state of mind. But helpfully, the guidance also says that informal procedures can be used as well. You might be able to deal with it informally. As you were saying, get in and tackle it.

And not in any way to undervalue or set aside if there's been a serious complaint of the likes of sexual harassment or sexual assault within a workplace, not to invalidate that by saying, "We'll deal with it informally". You will know whenever you see it as to how it should be handled appropriately.

But the guidance does remind us that there is that tool of dealing with things informally. And as you say, nip them in the bud quickly, get the issue dealt with, and be able to move forward.

Christine:  Yeah, that's great. I mean, it does sound like it's trying to empower employers more. And it's practical, isn't it? I think a lot of the time, the worry is, "Oh, it's going to end up in tribunal. I've got to get all these boxes ticked". And it's not. It's about a relationship within the workplace where it's okay to raise issues and it's okay to have a little bit of a rap on the knuckles if you do step out of line. It's not a huge deal. I think it sounds like a less scary approach, doesn't it?

Seamus: Yeah, absolutely. And what's really helpful within the guidance, then, is it sets out around six steps that provide for this. And you can really see it almost that the guidance is moving the responsibility to a different case, and increasing the responsibility.

So it does talk about organisations and businesses and employers having a corporate commitment. It says that there should be an insurance that senior management is committed to an inclusive workplace, and that those commitments should be set out within the policies and procedures.

So whether it's through the likes of equal opportunities, harassment or dignity at work policy, the guidance is clearly pointing in the direction that it's just not sufficient to have three-page grievance policy and procedure. You need to make sure that you have a sort of holistic approach.

And it also talks about the guidance in relation to an access to the current situation. It mentions things like, again, looking at it from an inclusive workplace, and the development initiative of a joint declaration of protection.

So you can really see how it is raising the bar as to what we might have expected previously. And again, just the case law is pushing it in that direction.

It talks about declaring a shared commitment with employees and trade unions to creating an inclusive environment for all. And that doesn't necessarily have to be . . . I mean, if you look at across all the diversities, it should be inclusive of everybody, whether it's disabled employees, or employees with mental health issues, or with learning difficulties. All the types of things that we have discussed and had before on our webinars, it's bringing all that together.

Really importantly, it does talk about the organisation communicating their commitment. And that is important. It's not just enough to say, "Yeah, we do it". You have to be able to show that you do do it. And it talks about continual communication, information available on your internal intranet, information available from managers or from the human resources department.

And that leads it into that sort of force ground of making sure that there's appropriate training in place for staff and for management. That was one of the issues that we had in the McNicholl case, is that the managers weren't trained. Yes, the policies and procedures were there, and it's this aspect of, "Well, they're great sitting in the cupboard somewhere. But when it comes to implementation, nobody knows what to do with them".

So it's making sure that there is appropriate staff training and management training as to how to deal with these matters as well, so that there's an open and transparent position where staff are aware of how they can bring about a complaint. And also that they can be comfortable that if they do bring a complaint, management will know how to deal with it and deal with it appropriately.

And that's one of the issues that I get all the time. I'll get somebody ringing up from an organisation and saying, "I don't know what to do". And I'll say, "Have you got a policy and procedure?" And they'll say, "Right. Okay. I've got a policy and procedure". And then you'll get a call back saying, "Right. I've read it and I still don't know what to do".

So it's making sure that the training is there, and that it also includes this aspect of implementing policies and procedures and making sure that there is that sort of aspect of both informal and formal procedures, and that you're making your reasonable adjustments also for the likes of your disabled employees in relation to meetings and how they would go about raising their complaints and grievances.

And the last one, just to touch on it, is about monitoring and reviewing progress. That was one of the issues that's coming from case law as well, is that you have to make sure that, yes, you have a policy and procedure in place, but if you brought it in, in 2005, has it been updated? Does it reflect the circumstances that we have now?

A big lot of these things now will happen via social media. They'll originate from social media. And a lot of these old policies and procedures don't mention social media. It probably wasn't envisaged back then, but it is that aspect of making sure that your policies and procedures are up to date.

And there is an element of you learning your fate. It's not until it happens within your organisation that you think about those sorts of things, but the guide is clear. I think when the guide is there and the expectation from a tribunal is that there is guidance available . . . We know that the tribunal will look to the Labour Relations Agency specifically in relation to their codes of practice and their guidance that they provide. So we now have this and it's important that it's followed through.

Christine: And do you think that the policies and procedures need to go as far as saying . . . Well, we'll take the example of . . . because you've mentioned McNicholl and Bank of Ireland. It was a sexual harassment case. So if we get an allegation of sexual harassment, this is the procedure we'll take with the person making the allegations, and this is the procedure we'll use for the person being accused of these things.

To me, in the Bank of Ireland case, they didn't quite know what to do with the two people. Things were glossed over and they continued working together for a while. So do you think you need to go into that kind of depth, of thinking about it now before it happens?

Seamus: Yeah. I mean, I do think the policies should be as complete as possible. Obviously, look, you can't forecast for every single thing that might happen, but there should be at least a basis contained within the policies and procedures as to how you would deal with it. And sometimes there are novel matters that happen. There are questions about, "Well, did this happen outside the workplace? Where are we at in relation to that?"

And also, the other important point is that when it comes to policies and procedures, they should be joined up with your other policies and procedures. It's very difficult just to have a standalone single policy on something. It should tie in and it should weave itself through the other policies and procedures of the organisation.

Sometimes you'll read a staff handbook that will contain all the policies and procedures, and there will be a bit of overlap, and then it can get confusing as to which policy and procedure you should actually use and adopt. But at least if it's there, you can identify it and you can use it as your starting point to start to move your way through that process.

Christine: Yeah. I think learn from other people's mistakes. These cases are published for that reason. So if you spot something that, "Oh, maybe we don't do that so great in our organisation. Let's make a change to that policy because of the Bank of Ireland case", or the Joe Bloggs case, whatever. So yeah, learn from others, really.

Seamus: Yeah, absolutely. And I think just in relation to takeaways on it, we now have the guidance there. It is really helpful. I think you've put a link up to it, but that's it there for . . .

Christine: Yeah, it's in the chat there right now.

Seamus:. . . anybody that hasn't had sight of it yet.

It's always a good time to update your policies and procedures. You should be doing that annually or biannually. And again, I suppose the point coming out of it is it's not simply enough to have the policies and procedures. They need to be freshened up, and you need to be providing training under those.

So it's not good enough an induction to say, "Here's the staff handbook. It's available on the internal system in the office", and leave it at that. There needs to be a proper process where employees are introduced to it, they're familiar with it, they know where to go to get it, and this aspect that if they do raise a complaint, that management know how to deal with it then.

And I suppose the last one is just that sort of aspect of where a complaint is raised, deal with the complaint. Even if you just deal with it informally in the first instance and you realise from there that you have to go down the formal route, that's fine. But if you let these issues fester and drag on, it can lead to further expensive problems down the line.