Lets look at the recent GB consultation on preventing sexual harassment in the workplace. It was kind of born out of the #MeToo global movement. There were scandals worldwide, and it kind of started with Harvey Weinstein in Hollywood and got huge from there really. There were the Presidents Club dinners in London.

And rencently we have had our own Northern Irish case. The McNicholl versus Bank of Ireland Equality Commission case was published. It had been anonymous, but last week it was published. So it's a really, really topical issue.

So Seamus, what does the GB consultation say, and what changes are proposed?

Seamus: Well, the government provided its response to the consultation on sexual harassment in the workplace on 21 July, so very fresh in relation to the response. It is available and you can have a look at it on the gov.uk website. It is fairly digestible and it's straightforward enough to read through.

In relation to overview of the response, as I said earlier, we do have legislation in place in Northern Ireland and in GB, but we've had this sort of surge of cases of people coming forward to say, "Despite the legislation, I've been sexually harassed in my place of work". And that doesn't necessarily have to mean that you're a glamorous Hollywood film star or anything like that. This is happening across the board.

And interestingly, in the response they did a public questionnaire along with the consultation. They had 4,215 people, male and female. I would assume in relation . . . I don't think that this is a necessarily an entirely female issue. But 54% of those 4,215 people say that they had experienced sexual harassment at work

Christine: Yeah, huge number.

Seamus: Yeah, huge number, and this is despite the fact that there is robust legislation in place and despite the fact that we're all very clear and aware, or we should be, about what is appropriate and not appropriate.

But specifically, only 36% of those that took part in the poll said that they haven't been sexually harassed, so significant issues there. And you can understand then that the government in this response have acknowledged that there's a need to go further in respect to sexual harassment at work. And the government have indicated in this response that they intend to make a number of changes to the laws as it currently stands.

Now, they haven't been entirely clear with us. Typically, this is frustrating point that you get to, but they have said that they are going to put . . . And if I just quote from it, they said that they're going to put a strong legal framework in place which both establishes clear standards and expectations for individuals and employers alike and that it's responsive to the modern workplace.

So as we know, in GB they have the Equality Act in respect of their sexual harassment legislation. We have separate legislation in Northern Ireland. We have the Sex Discrimination (Northern Ireland) Order 1976 as amended, so there are variations and amendments to that, but that's the main piece of legislation.

And the definition, Christine . . . I thought it just might be helpful to remind the listeners that the definition really is that sexual conduct has to be unwanted by the victim and it has to violate their dignity or create an environment that is intimidating, hostile, degrading, humiliating, or offensive to them. So that is the basic sort of definition of it.

And important to say probably at this point that employers can avoid liability in relation to sexual harassment if they can demonstrate that they took all reasonable steps to prevent harassment and discrimination. That's the area that the government is seeking to target, is really this aspect of all reasonable steps.

Christine: Yeah. So is it going to be the case that they don't have to wait for there to be a tribunal case before you can be tested on your policies? Is my understanding correct?

Seamus: Yes. Essentially, yes. What the government has said is that they intend to introduce a duty requiring employers to prevent sexual harassment, and that this duty to prevent sexual harassment will encourage employers to take proactive steps to make the workplace safer for everyone.

So 100% right, Christine. It's that aspect where they're saying . . . It's not that you're waiting for the harassment to take place and then you're judged on how you deal with it. If you review your policies and procedures, if you have a disciplinary that results in the matter being dealt with and training . . . What this response seems to be saying is, "No, we will be looking at it from a point of view of what are your actual steps in place to prevent sexual harassment from coming in the first place". And that's how you'll be judged.

Christine: Yeah. I was just going to drop in, Seamus, the McNicholl/Bank of Ireland case where the Bank of Ireland, unfortunately, fell down, as they had great policies, but management weren't trained on how to use them. So I think that's a really important thing that people need to . . . It's not a paper exercise. It needs to be proactive.

Seamus: One hundred per cent. And I suppose what the government has said is that you're going to have to have a policy in place that staff are aware of. They're going to need to understand that policy and they're going to have to be trained in it. And it just takes me back to Allay case and Gehlen of 2021, whereby the policy had gone stale or training hadn't been provided in over 12 months in relation to the position. So that is going to be fundamental.

And I suppose it's the aftercare aspects of that as well, ensuring that there's proper recording of the training that's been provided and a copy of the training that has been provided is available if it has to be produced. So you're taking steps to deal effectively with complaints is the other important part, and that you're taking an appropriate disciplinary action.

I just wanted to mention as well that, obviously, we have the Equality Commission in Northern Ireland. In England, they have the Equality and Human Rights Commission, and they are going to be provided with increased powers. This is what the intention of the government is. So the position will be that the Equality and Human Rights Commission will be able to bring an action and impose a financial penalty, even if harassment hasn't taken place.

So there will be inspections that will take place, that there will be reviews of policies and procedures, and penalties, if those are not followed through with or if the guidance isn't followed that the employers are given.

The government has certainly pledged that they offer more support to the Equality and Human Rights Commission, and they said that that will include the development of a statutory code of practice. So we will see a formal statutory code of practice coming into GB.

Where we kind of differ in Northern Ireland is that part of this response also talks about liability for actions of third parties. And in GB, they did have that within their legislation but they withdrew it.

And the government withdrew that element of the legislation, funny enough, because they said that it wasn't necessary, or that it was no longer required. Things go to show you then that we're in this position now where they are very much looking like they're going to roll back on that and bring it back in.

We took the better stance in Northern Ireland in that it was never removed from our legislation in the first place. And what I'm talking about here is really if there is harassment that takes place by your client or your customer, in Northern Ireland the employer remains liable for that. Now, that's subject I would say to the whole reasonable steps argument, but we do have and we have retained that within our legislation here in Northern Ireland.

I think probably the government will look back and see what the position has been here in Northern Ireland. I think that there are lessons for them to take from that process itself.

The other big significant change is that there's likely . . . and the government has said that they're looking closely at it. So there's no guarantee, but it's likely that they're going to move the timeframe, the statutory timeframe, to lodge a complaint from three months to six months.

You had mentioned to me, Christine, just that there was pressure on government in different areas to look at that.

Christine: Yeah, I think there's a bit of a snowball effect happening. I don't know whether people know the pressure group Pregnant Then Screwed. I'm a big fan. Very interested in their work. And they have been putting pressure on the government for a while now to change the limitation period to six months for maternity discrimination cases.

Their argument being, when you've just had a baby, you're not really in the right frame of mind to be pulling together a case within the three-month time scale.

So we might see that this does apply to different areas of equality law within employment, and I think it's an interesting one to keep an eye on.

Seamus: Yeah, absolutely. And I think just going back to the poll there and that sort of . . . I think it was 38% that said that they were unsure whether or not the legislation needed to be strengthened or more robust. Although they haven't specifically said in the response, it looks to me that what the expectation will be . . . It's not just a matter, as you say, of having a policy and procedure. They'll want to see that there is a training that has taken place. I think that they'll take it one step further.

And as regards to preventative steps in relation to sexual harassment, there might be avenues for reporting of incidences, whether that is a specific email address or a nominated person in the office that staff or employees can go to if they have been sexually harassed, or they're concerned about that.

Maybe signposts up around the office or within the policies and procedures to remind staff that sexual harassment isn't acceptable, and if it has happened to you that it should be reported and how they should go about reporting that.

I suppose it's about making it easier for anyone that has been sexually harassed, or has concerns about it, to be able to speak to their employer about it and avail of the support that is necessary. So I think that it's moving from that aspect of being reactive to harassment to being proactive about it, and there being an acceptance.

Specifically if you have 54% of people in the poll that have said that they have been sexually harassed, and maybe they've been subject to it and it has been appropriately dealt with within the workplace, but it seems to me that the response from the government is it's a move away from being reactive to being proactive to stop it in the first place.

And I could see the benefit of certainly the Equality Commission here in Northern Ireland already. Would take reviews and do reviews of policies and procedures. They'd go into the employers and assist them where they've been involved in cases. And you could see certainly a further role if there was support and government support for that case as well.

Christine: Yeah. And I think it's interesting the point you made, that the GB may be looking to us for best practice. How has it worked in relation to the third-party harassment? I mean, I think employment law in Northern Ireland is diverging more and more from employment law in England. Do you think this is going to be another point of divergence, or do you think that we'll play catch-up on this one?

Seamus: I would suspect given the very relevancy of the issue of sexual harassment, the fact that it has been spearheaded, and that it is a really widely covered media item, I would suspect that that will be something that we will follow. As I say, it's only the government response at this point to the consultation. There's been no legislation, but they have said that they will look to bring about a bill, a draft bill as soon as they have time in Parliament to do that. And I would suspect that it will be something that will follow on here as well.

Christine: Brilliant. Seamus, do you have any other points you want to make on that particular topic? Just mindful of the time.

Seamus: Yeah, I'm mindful that we're moving on the time. Really, I suppose a couple of takeaway points from that is I think it's an apt time always to review policies and procedures. And you need to consider whether or not your organisation doing everything to prevent harassment at work. And if you're not, what is it that you can go about doing to improve that?

Check your policies and procedures, as I said. Have they gone stale? Have signposts. Make the staff aware of how they can make complaints, and make staff comfortable that if they do bring a complaint, they will be supported, that it will be fully investigated.

And if all else fails, Christine, I'll never take the plug myself to say . . . or I'll never turn it away to say if you want a third-party organisation to review, sometimes outside eyes can assist better than that have been done internally. And there are lots of organisations, lawyers included, that could assist in relation to that.