Christine:  So, third question then, Maria. Thank you. Regarding third-party liability for sexual harassment, Northern Ireland is . . .? Are we behind GB. We've no government, so what do you expect? Or are we ahead of GB? We've had the law in place for years.

So let's see what you guys think of this one. Seventy per cent saying we've no government, what do you expect, and we are behind GB. Seamus, do you want to let everyone know if they're right or not?

Seamus:  The sceptics among everyone there, the automatic view that we are behind the door when it comes to all these things. But this is one that we're actually a little bit further on than GB and GB's maybe playing catch-up to us on this one.

So, it is a strange turn of events, but I can understand why people would be maybe thinking that it's one that we are behind on, given that most of our employment legislation we follow through after it's been brought in, in GB.

And not always the same. People will be aware that there is divergence between the law in Northern Ireland when it comes to employment rights and protections and that in GB itself. So, we'll maybe get into that a bit further shortly.

Christine:  Yeah, brilliant. Thanks for that, Seamus.

I'm really glad I picked this topic, then, for that reason, because I think it's becoming increasingly confusing. Especially it was a big fanfare of an announcement over the Worker Protection Act, and there was a lot of debate about third-party liability coming in, in GB.

Now, it's actually being sidestepped. The government kind of chickened out at the last minute on that one. And so, third-party liability doesn't apply for sexual harassment in GB at all. It was kind of one of the reasons they were trying to push it through.

But Seamus, do you want to give us a wee bit of background on the Worker Protection Act then?

Seamus:  Yeah, absolutely. The basics here that we're looking at are that we do have, as I said, a divergence here in Northern Ireland. And everyone will be aware that there are significant differences at times. Most of the time, the legislation is . . . I mean, you could almost lift sometimes the Employment Rights Act and the Employment Rights Order and think that they were the same, but there are subtle changes. There are differences, particularly whenever you get down into the detail of the legislation.

So, we do have diversions. It's usually similar, but not always the same. Maybe that's the best way of putting it.

But the big one for the topic this morning would really be that in England they have the Equality Act of 2010, which we don't have. We have all our individual pieces of legislation around discrimination and equality.

So, we have FETO, our Fair Employment and Treatment Northern Ireland Order, we have our Race Relations Order, our Disability Discrimination Act. They're just a few of the separate pieces of legislation.

And if you're ever sort of doing a comparison, I know our friends over at Lewis Silkin have a great comparative table that Legal-Island have mentioned before, where you can look to see the differences I think in England and Wales and GB and what they are here.

You can pick up those sort of nuanced differences, but it's quite a large one in and around the Equality Act. And sometimes whenever I'm dealing with colleagues from England, they won't realise at all that there's any difference in Northern Ireland.

There's an automatic assumption, particularly if you're doing compromise agreement work or if you're doing maybe company work as well. You'll see when documents come through that they'll always refer to the Equality Act. And really, what that did was it bound all of the different types of equality legislation together into one act. And of course, as I say, we don't have that here. And whether I say we don't have the benefit of it or not is controversial. So, I'm not saying that.

But the main reason there is because employment law in GB is not devolved from Westminster, where for us here in Northern Ireland, is a devolved matter for our assembly to deal with. And that has been the position from 1998, or slightly sooner, I think.

And then we have all the confusion that has arisen around Brexit. We talked about the withdrawal bill, and the retained laws, and all those sorts of things that were really causing a lot of confusion.

So, there are differences there and there has been a difference between the position on sexual harassment when it comes to NI and GB, and we've had that really from 2008.

But if we want to maybe just look at what we've had in GB, what they've brought in, initially there was a bill brought in, the Worker Protection Bill. Then ultimately, that has come in to a full piece of legislation that has now received Royal Assent, and that's known as the Worker Protection (Amendment of Equality Act 2010) Act 2023.

Now, that has got Royal Assent. It will not come in to effect until 26 November 2024. So, there is a bit of a lead-in period. And I did see some commentary about it, but I didn't see a massive amount of commentary for such an important piece of legislation. And I think just as we turn the corner into the new year, we might see the developments pushing that direction further.

But the Act, the intention there is that it amends the 2010 Act to better protect employees from workplace harassment and sexual harassment. And there's a clear sort of shift within the legislation where you have a movement from a focus on redress to prevention. It's this aspect that there is a clear duty that is put on employers to prevent sexual harassment happening in the workplace.

So, the legislation puts an onus and a duty on the employer to do that, and the employer must take reasonable steps to prevent sexual harassment of employees during their employment. So, that is what the legislation says.

And essentially, what that means is that the employer will be liable for harassment of employees in certain situations, and it introduces this positive duty on employers to prevent sexual harassment from taking place.

It does seem that it was quite controversial whenever it was being debated through the bill. As you mentioned, it has been watered down significantly, even from the point that it had originally said that the employer must take all reasonable steps. They removed the word "all" and reduced that just to "reasonable steps".

 So, there's this now positive duty on the employer to ensure that harassment isn't taking place, which we have had here for a long time. If you look at any of the guidance from the Equality Commission, Labour Relations Agency, you'll see that it certainly has been the position here from 2008.

 And I'm just thinking back to our Annual Review. My topic at the Annual Review was about workplace banter and all the forms of harassment that can arise from that. But in particular, we had looked at the time at specific guidance that had come from the Equality Commission and the Labour Relations Agency, and really about the whole process around the joined-up position for employers to ensure that harassment doesn't take place in the workplace. So, it is certainly, I think, an important piece of legislation.

 Two things that it does set out. If there's a failure by employers . . . There are two points really to denote from the legislation. One is that in England and Wales, the Equality and Human Rights Commission can take enforcement of steps against the employer. So, if there's a finding that the employer has failed in its duty, you can have the Equality and Human Rights Commission step in.

 And then in addition to that, there is discussion in the legislation . . . and I'm trying to look back at some of the parliamentary debates and discussions about it as well. But there is this aspect where there is the ability for a tribunal to look to uplift compensation that can be paid, and they can increase the compensation up to as much as 25%.

Now, clearly what it does say is that the compensation uplift must reflect the extent of the failure by the employer, but it can't be any more than 25%.

And just some of the commentary that I was reading, I thought this was interesting. They were saying that in GB, the average award for sex discrimination in 2022 was £37,607. So, another quarter on that is a significant amount.

I suppose from a legal practice perspective, if you're advising in relation to that, it's an important step that comes from the legislation.

But Christine, I thought it might be helpful to have a look around what the reasonable steps might be that the employer would have to take. And I do think that for us, as I say, the position in Northern Ireland is that we have had the benefit of this from an employer perspective.

I think that we have been very clear through guidance pieces, through government notifications, and through what the Equality Commission and the Labour Relations Agency have had to say, which is that Northern Ireland employers are liable for their third-party non-employee sexual harassment employees.

Now, that only applies in Northern Ireland to sexual harassment. It doesn't apply to any other forms of harassment. And the Equality Commission guidance does say that employers are liable for repeated harassment of an employee by third parties. And that could be their clients, their customers, their suppliers, anyone else that's coming into the business.

And particularly around that aspect that if the employer fails to take reasonable, practicable steps, is the threshold here, to prevent harassment from happening. So, the bar is higher here. For once, we are setting the bar. We're leading the way in relation to this.

And I think that if you look at some of our tribunal decisions, you can see where the tribunal have taken the position here in Northern Ireland very seriously. And certainly they'll look at the case law in England, but our particular case law is helpful for anyone that's playing catch-up at this point to it.

But maybe just to talk about what those reasonable steps might look like and what they might be. We know that a good starting point is to have a policy and procedure in place.

Christine:  Of course. Yeah.

Seamus:  You'll be looking to have your anti-harassment, your bullying policy, your equal opportunities policies and procedures in place.

But the recent case law has developed in relation to that, and we know that it's just not straightforward or as easy for employers to say, "Well, look, I have policy. There's my defence. It's not my fault if an employee harasses another employee, or if there are third-party aspects happening in relation to it".

So, the idea is that you're looking at a complete ethos, a culture in your office where the employer is very clear to the employees that this sort of behaviour isn't going to be tolerated, that there are ramifications in relation to it.

It needs to certainly be an office place where people feel safe to raise those complaints, and to know that they're going to be treated seriously and that there will be actions taken.

And then there's the whole issue around staff training. It's not sufficient enough . . . I think it was the McDonald's employees that were given a video to watch where they were making McFlurrys. It's not sufficient enough just to simply say, "We've provided training by giving a training video". The training must encompass full and proper training, and it must be refreshed. It must be kept fresh. And you can't say, "We gave training on that five years ago".

And I suppose the other really important point in all of that is to make sure that the likes of management . . . or if there are harassment buddies, which the Equality Commission recommend in their guidance with the Labour Relations Agency that you have a harassment buddy, somebody particular in the office who has been specifically trained not only to deal with those cases that arise, but to spot them, and to see when it happens, and to take the action at the time and not turn a blind eye to it.

We know all the different forms of harassment, whether that's through verbalisation, whether it's through text messaging or emails, right up to assault that can take place through inappropriate touching. Through all of that, there should be eyes within the management team that are watching out for that sort of stuff and taking steps to ensure that it doesn't happen.

Some of the more interesting things, and I think really where it is developing and moving to, is that there was talk, particularly from English commentary there just around the legislation, about holding a reporting register for complaints within your organisation.

That would allow you to see where the risks are, where the holes are, and to permit on-going monitoring to enable employers, then, to identify any types of things that are arising within their office place or their risky practices, and then take action to address those.

And I think that's another step that we see bolted on to the requirements that employers are going to be under. I think it's just about proactively identifying those risks, and particularly around the types of roles and circumstances that employees might be in.

It doesn't wholly apply, but the position is that female employees, when it comes to sexual harassment, tend to be more vulnerable than male employees. And if you have female employees in what are considered male-type jobs, those female employees may be vulnerable, and that's where you need to be assessing the risk and putting proper procedures in place to protect the employee.

Or if you have a circumstance that arises within your workplace, you're taking the circumstances of that and you're learning the lessons from it and applying it through.

I think if you've got into a tribunal case and prior instances were brought about, I think the tribunal would take a very negative view if you haven't taken steps to try to rectify it, never mind you trying to amount a reasonable practical steps defence at all. So, I think that that is important.

But again, just the employer taking those steps to update, recirculate their anti-harassment policies and procedures, and those policies and procedures that are specifically tailored within the handbook.

And then the other one that I did see was about this aspect of having visible signs in areas where customers interact with staff members, and advising that threats of violence and harassment won't be tolerated.

Now, we do see those. More recently I have come across those, particularly in public sector, in hospitals, in doctor surgeries.

Christine:  Doctor surgeries, yeah.

Seamus:  And even at a recent trip to McDonald's, I saw one that said, "Please treat our staff with respect. If you don't, we won't be able to serve or assist you". It definitely is moving that aspect that you can really see the onus now being pushed onto the employer at a much higher level than it was previously.

Christine:  Yeah. Seamus, while we were chatting in preparation, you talked about O'Reilly Stewart's receptionist as a good example. So, what kind of steps did you guys put in place? She's obviously away from the main office working on her own and public facing, so I thought that was interesting [crosstalk 00:21:14].

Seamus:  Yeah, we have a receptionist on our ground floor. It's a secure area to get from the ground floor to any of the other parts of the office. You have to go through a security door and all that sort of stuff. But there's an element that the receptionist is almost on her own down there. Now, there will be people that will be passing back and forth all day long, but there will be elements of time where she's on her own.

And just through experience and things that have happened, we have identified the risk in relation to that. We have CCTV up that the receptionist can see outside of the office. So, if somebody comes to the door, you just can't push the door to come in. You have to push the bell. She's able to assess and come through.

And it's not that we are in a bad part of town or that there are any . . . These are just general risks that are out there. And even things like she has a panic button and things like that. She's the forward-facing front person in our office.

It just struck me when I was reading through some of the commentary about this, on identifying what your risks are and then putting in the proper procedures to make sure that your staff member is protected.

Christine:  Brilliant. Thanks very much, Seamus. Have you anything to add on this third-party liability, or should I do a bit of a wrap-up and we'll move on?

Seamus:  No, I'm happy for you to do a wrap-up there.

Christine:  Brilliant. So, really I think my three takeaways regarding the third-party liability aspect of that is Northern Ireland is ahead of the curve with this legislation. GB is for once playing catch up with us.

Secondly, employers here in Northern Ireland can be held liable for third-party non-employee sexual harassment of employees, but not for harassment because of other protected characteristics.

And lastly, Northern Ireland employers must take reasonable, practical steps to protect their employees from harassment by third parties, such as clients or customers, where such harassment is known to have occurred on at least two occasions. Now, we did discuss that. That's in kind of the guidance. So, it's looking out for those recurring issues, really, isn't it?