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.