In this brand new bi-monthly feature from Legal Island and Ronan Daly Jermyn, Scott Alexander, Head of Learning and Development, will discuss key employment law developments with the Partners in RDJ’s Employment Team, including the effervescent Jennifer Cashman and her equally lively colleagues David McCarroll, Deirdre Malone, Antoinette Vahey and Michelle Ryan.

During this webinar Antoinette Vahey, Partner with RDJ will discuss the following with Scott Alexander:

• WRC Adjudication Service – following the recent Supreme Court case of Zalewski -v- Adjudication Office & ors [2021] IESC 24 the WRC has made a number of changes to the operation of its Adjudication Service. The impact of these changes for cases in the system and those going forward and how the WRC are likely to approach them will be reviewed.
• Redundancy/Collective redundancy – the inevitable removal of Government supports is likely to lead to an increase in the number of job losses as a result of redundancy.  This webinar will address issues such as consultation; redundancy while on lay-off; impact of closure of premises and relocation's; impact of remote working, etc.
• Employees refusing to wearing face masks – giving rise to issues in the workplace and also under the Equal Status Act due to refused entry to services.

Scott:               Good morning, everybody. My name is Scott Alexander. Welcome to first of a new series of webinars from ourselves and Ronan Daly Jermyn. You can see the screen there we have David McCarroll who is a partner in the Galway office that we have in RDJ, and just to tell you a little bit about him. David is a partner in the employment group in the Galway office here. He advises a wide range of private sector med-tech and life science clients on contentious and non-contentious employment matters.

                        There's many other things that David does but today what we're going to do . . . so we're going to look at three subjects that we think are contemporaneously interesting to the audience of Legal Island and the clients of RDJ. We do have other ones are coming up. This is a series that we've got with RDJ so just letting you know. 19th of November we've got Antionette Vahey, the 17th of September Deirdre Malone. We have Michelle Ryan in July on the 23rd. We have the bold Jennifer Cashman coming on the 21st of May so that's the lineup for this year.

                        And the idea is that we'll take things that are current and we'll talk about those subjects, so you can send in any questions you like, but what we're going to be looking at today are three particular subjects. Now one of them is to do with equality, and of course Legal Island does a lot of equality training and one of the things that people have been doing in the last year since lockdown there's a lot more e-learning because it's relatively easy to do and many people are working from home. So we've got an offer there if you're interested. If you have a look on your right-hand side of your screen, you'll see a little box that says questions, and if you type "yes" into that question box right now, then what you'll find is that Debbie from our e-team will get in touch with you and give you that 50% off. We'll follow up anyway, but if you are interested then please do get in touch by typing "yes" into the box.

                        Now, we are going to discuss these three areas at the moment, and you can see we're going to look at the statutory defence under Section 42 of the Employment Equality Act and we're going to be looking at a statutory defence where the employer can say, "I shouldn't be held liable for the actions of my employees because I have done whatever I have done to mitigate the chances of it happening." So we'll be looking at that. We'll also be looking at the new unified Code of Practice, the WRC/HSA Code of Practice. We'll be looking at that one too, where in particular you get strong management and strong performance and where does it become bullying.

                        And then we'll also be looking at an area just a little bit different which is the WRC and remote hearings that we have coming up. Obviously the WRC haven't met too often in the office over the last year and have been doing remote hearings.

                        So before we get onto the first one we have a poll. So Rolanda who is with me here today from Legal Island has set up that little poll there. Now this is all anonymous. All your questions are anonymous. You can ask David any question you like and send them in. I'll read them out but I won't say who's having them, so if you wanted to [inaudible 00:03:36] poll now. Have your employees undertaken any equality training in the last two years? We are looking at as things are coming up round about 40% are saying yes, a little under that, they have. Well done folks. The others are saying no. Well, maybe just show that poll, Rolanda. There we go. There's the figures for you. Yes 37%, no 63%. I think those 63%-people are going to have some difficulties, David. What do you say about that?

                        Well, the poll . . . the first question here is let's talk about the statutory defence that there is against harassments claims, and I suppose it's similar kind of defence could be made against bullying claims. So do you want to give us some background there? If you're joining us, folks, this David McCarroll from RDJ. If you have any questions drop them into the question box and we can deal with them in a few moments. On you go, David.

David:             Thank you very much, Scott, and thank you very much to Legal Island for inviting us for this audience. Good to have an excuse to get a jacket on every now and again. In terms of this particular topic, I see you've used that little HR colloquial couplet of bullying and harassment. I'm going to give you a little slap on the wrist there straight away, Scott. You know you shouldn't be doing that. Bullying is one thing. Harassment is something completely different.

                        So let's deal with harassment first. Harassment is unwanted conduct. It has to be related to one of the nine grounds and it's something that I suppose violates a person's dignity. Two key elements to that. Number one, it can be a once off incident, so straight away we can see that it's different to bullying which has to be more than a once off incident. Secondly, obviously it has to be related to one of the nine discriminatory grounds. And the third aspect is the test for harassment is subjective. So that means, you know, if you make a comment to me that I feel was sexist to me, then the test is that I felt that it was a harassment comment not that a third party looking in.

                        So bullying would be objective, meaning somebody is looking in and making that assessment, whereas harassment straight off the bat it's a subjective test in terms of how I understood the comment. And in terms of is there a statutory defence, the straight and short answer, which of course as a lawyer I'm not going to give, is yes there is. There is of course a statute of defence. However, it's not as easy as just making that defence. So the particular section I think is Section 14A and it talks about an employer being able to prove that they took such steps as our reasonably practicable, and that phrase "reasonably practicable" comes up in other legislation as well.

                        And ultimately the courts have determined and our Labour Court has determined in relation to harassment issues that, you know, it's not enough justice just to plead that, you obviously have to lay out the evidence to show that you took all the steps that are reasonably practicable.

                        What would that look like? The very bare basics I suppose is that you will have to show that you have a policy in place. It will have to measure up largely to the existing Code of Practice on harassment. You will have to have trained people in relation to the actual issue of harassment and you will also have to have . . . obviously processed the complaint that has come in. Beyond that, certainly I've seen cases where the Labour Court have for example criticised an employer whereby, you know . . . when a harassment issue was raised it was dealt with through the policy but then there was no follow-up so there was further harassment and then when the Labour Court came to consider the further harassment, they were very critical of the employer for trying to rely on the statutory defence but at the same time they did nothing after. They didn't do any follow-up, so that can arise as well.

                        Now, look, good HR practice would be that with any kind of a complaint, be it bullying, be it harassment, you would circle back with somebody within a short timeframe and then a little bit further out just to make sure how things are progressing. But in that particular case nothing had happened and therefore a further incident of harassment, it was harder to rely on the statutory defence. But the key thing is you have to be able to actually demonstrate it.

                        You probably noticed I think . . . Legal Island covered it. There was a case in England where somebody wasn't able to rely on their statutory defence on the basis that training hadn't been given within a certain period of time. I think it was two years. Look, that's not an approach that has yet been taken here in this jurisdiction, but look, as always with these it depends on the nature of the case and the facts of the case.

                        Our obligations are . . . the Code of Practice in terms of best practice it talks about training at induction, you know, wider issues like for example if you think about training for things like, you know, lifting boxes and stuff in work, those types of training, the codes in respect with those tend to talk about repeated training but I don't think they give a specific timeframe. I have a vague recollection that it might be around three years in terms of annual handling training, that kind of thing.

                        So, you know, would that translate? I don't think you would need to train people every two years. I don't think that's going to be a necessity. However, there's other ways you can keep anti-harassment procedure in the forefront. You know, you can run campaigns. You can have awareness around certain issues. You can link it to certain themes that are the focus of maybe a wellness program that you have in place. So there's a lot you can do to keep it front and centre without necessarily bringing everyone in every year or every other year to do training.

                        And then I used that word "reasonably practicable." Of course, that's a stock phrase in law. It's up there with some of our favourite Latin phrases and, you know, that's the same phrase that turns up in relation to the bullying cases. So in terms of a bullying claim bullying of course is a totally different thing. You're talking about a series of incidences not just one and it is something that is objectively looked at, and ultimately with bullying you're talking about behaviour that might be reasonably regarded as being an affront to your dignity.

                        And in terms of how those cases manifest themselves, typically, a bullying case as it might be colloquially understood is essentially a personal injury case, so you need to have an injury. There ultimately needs to be . . . proceedings will be issued generally in the High Court and it will be pleaded there that obligations to provide for a safe place of work under the Safety, Health, and Welfare Work Act have been breached.

                        And there are similar defences in the Safety, Health, and Welfare Work Act in terms of taking all steps that are reasonably practicable. So an employer can say I have taken all the steps that were reasonable practicable but at the exact same there, the High Court have always held that an employer must actually evidence that, must show that they did take all the steps that are reasonably practicable, and what do they look like? Pretty same as harassment. You know, you have to show you have a policy. Although taking a step back I suppose in terms of the Safety, Health, and Welfare Work Act, you know, there's an obligation to carry out a risk assessment. There's an obligation that that risk assessment will feed into a safety statement.

                        Now, if you talk to your health and safety officer, they will show you a safety statement and it will show that bullying has been identified as a risk and the way to manage that risk is through the introduction of a dignity at work policy or anti-bullying policy. So that's your first step, and you can show that we've done . . . we've met our obligations in that regard, but of course there's no point in having a policy just gathering dust somewhere. You'll have to train people. You'll have to highlight this issue. You'll have to keep it alive if you like, and also you'll have to follow it ultimately.

                        And, you know, just an interesting I suppose twist on it is that very often when I'm asked to deal with bullying the initial focus of the client is often on this is why it's not bullying. You know, it shouldn't be deemed bullying, and I always have to go back and say, "Look, our role here in terms of mitigating any future claim is more about how you process the claim rather than what the result is." And, you know, bullying claims can go either way but you have to be able to be . . . either way they go you have to be able to show that you process this in a certain way and you took various steps.

                        So it's the same idea. You took reasonably practical steps, and also in relation to bullying I suppose, you know, the Code of Practice which I'm recommending as our book of the week here on RDJ Audience. The new unified Code of Practice, it does maintain the same definition of bullying, no question, but I suppose what they're starting to see feed in is some of the language or maybe a result, a ripple effect, of some of the language that was used by the Supreme Court in the Ruffley case. So ultimately the way the Ruffley decision in the Supreme Court, they assessed what kind of treatment would be an affront to somebody's dignity? What could be reasonably considered an affront to somebody's dignity, and through interpreting that definition, you know, in my view they kind of placed the definition almost on steroids.

                        I mean, there's quite a high bar now. I mean, they talk about behaviour that, you know, was beyond all kinds of reasonable norms. It's quite, I think they said it's, "ongoing targeted and outside any reasonable norm." That's the phrase they used. That's a very high bar in terms of whether something is bullying or not, and when you feed that into the Code of Practice they talk about something that isn't routine and, you know, I think it says something like beyond any reasonable norm, outside of any reasonable norm. So it's still even filtered through the WRC and the HSA . . . the interpretation of that definition is a little bit . . . it's harder to overcome, and we have definitely seen a drop-off in the number of cases that are actually taken in relation to bullying, and a switch instead of it being a bullying case, they're now taken maybe more as work-related stress, like, type-cases.

Scott:               Okay, so . . .

David:             The short answer is yes, there is.

Scott:               Okay. There is a defence . . . I suppose the case you were chatting about which was Allay against Gehlen. We can send a link on for anyone that wants it. Was they were saying they had a reasonable defence because they'd actually trained the people in the last . . . well just over a year before the incident, but again, the court in that case, that was the equivalent of Labour Court in England at the time, they were saying, "Yeah, well, your training clearly didn't work because your supervisor saw what was happening here." It was a harassment case not a bullying case, "Your supervisor saw what was happening and did nothing about it. So whether you got training it's got to be active."

                        And this point you've been making there, the courts look at what happens in reality. And contract law they say what actually happens on the ground. There's no point in having a contract that says one thing if you do another. And similarly I think this defence [inaudible 00:15:00] you have joint and several reliability in harassment cases and the employer will be held liable unless they've got this defence, unless they've done something to reduce the chances of harassment there.

                        But obviously the individual can be held liable as well, and so it's not unusual to see claims which are taken against an individual and an employer, but the employer's defence in this case presumably is that I have done enough, whatever that is. We've set up the networks. We've done the training. We've had briefings. We've circulated cases. We sent around the new harassment code, whatever that happens to be, that you've taken it seriously. And your point about it's the evidence that it's important to you. You know, that obviously it's . . .

David:             [inaudible 00:15:50] the policy. The policy is only going to get you so far in terms of a defence. You're going to have to show that it's a living, breathing culture, that anti-harassment lives and breathes in your organisation, that it's highlighted. You're essentially going to have to show that somebody would know what to do if they were harassed because they've seen the policy. They've some awareness of it, or, in particular, I mean, you mentioned the supervisor didn't do the right things when they got the complaint. But I mean, that could come down to proving whether or not the supervisor had been trained, you know, demonstrating, did we address the handling of that issue with the supervisor afterwards for example. It might have been a different case if we were able to say we too were appalled with how that was held and we address that with the supervisor because that is not in keeping with our standard process and that was not in keeping with how we deal with harassment issues.

                        But it's . . . you know cases are all about the factual details that happens on the ground. They're not really, you know . . . they're not always driven by grand legal principles. Of course, they're drawn from the framework and the architecture of the legislation which is being determined, but at the end of the day, you know, there's an awful lot more asked about what actually happened rather than, you know, the framework of the law.

Scott:               Okay. Thank you very much. There's some comments coming in here. The one that you picked me up on at the beginning there by having different policies, one for harassment and one for bullying, and we'll come on in a second to the contact person and the other roots that are in the Code of Practice, but thanks to the people who send them in. Is there a best being source for a policy template on either bullying or harassment?

David:             Well, actually the new Code of Practice on bullying does lay out what should be included, and actually when I first looked at the document of course it's about a 40-odd page document and that's always off-putting at the best of times, but quite a lot of at the end is an appendix in relation to, you know, how you should go about producing a document, so that's a good start.

                        And after that, you know, in terms of the Code of Practice itself, first thing I would say is what screamed to me in the Code of Practice, and of course for those who don't know, this is a new unified Code of Practice. There used to be on that the HSA had and one that the WRC had and they brought two organisations have now produced one in conjunction with the usual parties like IBEC and Unions ICTU. And the key message that screams between the lines for me is that they're really saying, "Look. Sort these cases out. Don't let them go, you know, formal. Don't let them go all the way through."

                        It just . . . you know, they've put in this idea of an informal in the first sentence. They're leaning on this idea of a contact person, that that person should, you know, essentially be there to aid the individual who is party to this complaint through their options of an early stage. That will be an important role, but then a fantastic idea. This secondary informal process which I have to say I very strongly approve of because in practice, and I'm sure a lot of the attendees will appreciate this . . . in practice, sometimes the first informal interactions, it's just a bit too early and people have just got up off the parapet to be able to say, "I feel this treatment, you know, is bullying."

                        You know, they've maybe taken that step. They've thrown an email out there. The reaction can be horrendous once you see you're accused of bullying as an accused party. You know, you get into your own camp and you circle the wagons. So it's almost the very wrong time to try and informally address this resolution, and a lot of things can come aground there. It's just . . . people can just . . . the initial reaction is going to be so strong. So it's fantastic that they're really pushing as a matter of best practice this secondary round where you have a nominated person and that person will [inaudible 00:19:56].

Scott:               Okay. Can I stop you there and we'll come back to that. I want to do another little poll here just because we're moving on to the second subject and I've seen a number of questions coming in there just about those roles. So here's the next poll. Have you amended your bullying and harassment policy or separate policies, particularly bullying policy, in the light of the new Unified Code of Practice?

                        So let's see how we're getting on with this one here, and I'm looking at the numbers coming up here, and it was fairly similar. Has anyone changed . . . well, it's a fairly new policy and we'll stop around there, but it's only about 30% or so that have and there's Rolanda showing you the numbers. So about 30% there, David, have done that. Just as a passing comment, folks, if you look in the little chat box, you'll see there's chat and there's questions, so send your questions in preferably through the question box. But in the chat, we'll put that link to that case that we mentioned, the English case, that you can have a look at where the employer unsuccessfully said that their recent training was enough. It was obviously out of date and hadn't worked.

                        So David, just before you move on to these different qualifying just to show the kind of things that has come up because people have been concerned about that. The new Code of Practice states the internal informal management of complaints should be managed by suitably qualified persons. Do you know if there's a further definition on what constitutes suitably qualifying? Just before you answer that, Rolanda, who works with me at Legal Island and the L&D team and who's doing polls at the moment and indeed will be interviewing Caroline McEnery on Monday if you want to join us for the webinar on probation.

                        When we both worked for the equivalent of the WRC up north, we were trained as harassment advisors and there were informal people who would do this very thing that's in the new code. People could go to us. You were maybe scared to go your line manager, maybe you've fallen out with a colleague and rather than go to them directly or raise this formal grievance, you could go to the harassment advisor. Rolanda or I or a number of colleagues that were around, there were seven or eight of us, who were trained on it.

                        And the idea that you would speak to the person, at least give them a hearing and letting them figure one or two things out, and the code as you say is different. It's got somebody who is the first point of contact, and they go in and think about. But if they're looking to take it that little stage further, this is the bit you were chatting about under the code to say, "Well hold on. Let's get it now. Let's get somebody who knows about more." And I think that's what this question is getting at, is there a person here the . . . and I don't think they really have a name after the contact person's the first one, but this second person in this second informal stage they could make things a lot worse. [inaudible 00:23:03].

David:             [inaudible 00:23:05]. Yeah.

Scott:              Depending on how you deal with things. So I think that is what the question is getting at, is what do you have to do with these people that are going to be saying, "Calm down." Or, "No, go ahead. Take your claim"? Because it could end up like that if they don't resolve it properly and if they're not trained to mediate or to . . .

David:             Look. You've drawn the distinction correctly. First of all, you've a contract person, and their role is not as an informal investigator, their role is really what is required of their role. The only thing it says in the Code of Practice is that they'll be a person who you can get a copy of the policy from and I suppose give them some guidance in terms of what you do with that.

                        And in terms of how you would for example train somebody or what type of person will be appropriate, you know, I think that person has to be able to advise the person who's come to them that they're, you know, there's a harassment policy, there's a bullying policy, there's a grievance policy, and to be able to say, "Look. What are you complaining of here? What's a good outcome for you? You know, is this something that should be steered towards a grievance? Is this something that should be steered towards bullying?"

                        Even the distinction I made earlier about a once off incident. You know, you don't want to mark someone down a bullying complaint when really, you know, you and I are having a row over the fact that I shouted at a meeting. You know, that was a once off incident. That's the kind of thing that might cool the temperature down quite easily through a contact person saying I think the best way of dealing with that is that we'll go here.

                        And the contact person I think has a great role there, a bit like a mediator. You know, people always talk about the skills of mediator being able to bring people together, but a lot of the skills of the mediator are kind of twisting the arms of people and saying, "Well, look. I wouldn't go over there with this problem because that's not a good place to go. I'd try and deal with it here." So I think, you know, a bit of that quality to them as well that they're able . . . and they're a trusted individual within the organisation.

                        Now, look. In my experience very often when these new roles come up, you know, it ends up being a hate or generalist or, you know, it's just something that somebody in HR gets burdened with. I don't think that should be the case with a contact person. I think a contact person should be somebody there on the ground in the team on the site, so that's the contact person.

The second, they do have a name. They're called a nominated person, not a very snazzy name but nevertheless, a nominated person. They're the secondary informal role. So we have the first informal role. The idea there being your contact person is helping me to look at my options and then I maybe go to a manger and we try and come up with some kind of informal resolution. Okay, that hasn't worked.

Now we have a new idea which is a secondary informal role, a nominated person. Now this is a big role. This does need training, and, you know, this is where the best chance of success lies. I mean, I think I've said to you before, Scott, I mean, I've sat in the High Court for three weeks in relation to bullying cases where the judge would say, "Can you please go outside and talk to the parties?" And then we come back in and the thing goes on and on and on and there are no winners when a bullying claim goes to the . . . there's technically a winner but, you know, the difficulty of getting to the end, you know, it's not where you want these cases to go. So it's worth investing in some meaningful attempt on the secondary informal role.

Now what would that person look like? You know, the first round has floundered. We need to give it a good go here. First of all, I'd say that I think it's a good idea to impose this secondary informal option, impose it as an obligation that you have to engage with a nominated person. Of course, you cannot impose a solution. You cannot say to somebody you are required and mandated to reach an agreement, but you can certainly impose on them the obligation to meet with somebody to understand the process, and we would often do that in relation to mediation. It's often the case we would say to a client, "Look. Why don't you impose an obligation to meet with the mediator and then see what happens." Because again you're giving it a much better opportunity to flourish.

In terms of the type of person, even the Code of Practice talks about this, you know, the individual has to be the right type of person. Now it does talk about appropriate training and exercise. Of course, it's profoundly vague then as to what that should mean. What do I think it means? I think obviously they'd have to be familiar with the policy itself and I think that they cannot be the contact person obviously from earlier, but I mean this is a kind of a blockbuster role so you do have to have the right person.

You know, personality-wise, they're going to need to be a little bit of a mediator. They're going to need to have kind of diplomacy skills. They're going to have to have empathy. They're going to have to be persuasive. They're going to have to be respected, you know, trusted for this type of role. You know, they need to be . . . it talks about them having a role of establishing facts, you know, a bit of an investigator style role to this also, and even maybe bringing forward possible resolution measures. So that's . . . you know, that's quite a bundle of talents right there. I mean, to be quite frank that's not just a good employee. That's a perspective, you know, spouse or life partner. That sounds like someone who ticks all the boxes everywhere, you know.

So I think, you know, often when I've discussed this so far with clients when you start to describe that type of person sometimes they go, "Oh, I know someone who would fit that bill." So sometimes when you start thinking about it, you immediately . . . you know one when you hear one. The other thing I have seen clients do in the past for things like contact persons, and there's no reason you couldn't do it here, is to go out to your employee population and find out what you have.

I mean you mentioned you had a role previously as a harassment advisor. I've certainly had situations before when an employer asks look . . . We're looking for these new types of roles. They will be important. It sets a good standard in terms of the culture of how we deal with these issues, and, you know, they've had people come back and say, "Look. Outside of work, I've partaked in charity phone line work." Or, "I have been the complaints officer in my GA club." Or, you know, "I've done a marriage guidance counselling course in a parish I'm in." So, you know, there could be all kinds of different elements to where the skillset is built up that you could at least build off that.

So I think the other thing is these people are going to need training but they're also going to need to be backed and I think you're going to have to demonstrate to staff . . . I think if you were training the staff, I think you'd have to bring senior people in, you know, bring your site manager in to thank them for putting themselves forward for this role to make it clear that they are part of building this culture and that they will be important rather than it being a bit like, you know, I wasn't in the room and I got nominated as data protection officer, you know. So I think you want the right people and you want to then really push and support them, but it's going to be a vital role, an absolutely vital role, and I really do think it's a marvellous idea.

Scott:               Yeah, thanks very much, David. We're getting a number of technical questions. I'm going to suggest if it's okay with you that we gather then up and maybe do a follow-up to the how to handle articles of RDJ. There's quite a number of issues. So there's somebody they have said that they'll also connect you for a little bit. Yes, this is being recorded and certainly subscribers can listen back on the website. It will be up usually this afternoon they're up and then we get them transcribed as well. We're also turning this into a podcast so wherever you get your podcasts from like the Legal Island might be . . . I don't know what they call that the iPlace, but anyway, wherever you get your podcasts from. This will be turned into a podcast as well, so you're going to be famous and throughout the world people can download this conversation and listen back.

                        It's a strange role. Maybe just before we move on, I'll ask another question. You can type "yes" into the question or the chat box. Would you be interested if Legal Island were to run training courses for these nominated people or indeed for the contact person on the new code? If you're interested type "yes" and that will give us an idea whether we should be running a training or not on this particular thing. It may not be for the HR people. It might be for a number of people in your organisation that would do that, but the . . . just looking at that the answer seems to be yes at the minute. There's quite a few been coming in, so that's very much [inaudible 00:31:48]. That's wonderful.

                        Okay, we'll get it on. We get the message. We get the message. We'll be doing that training right enough. There are number of questions coming in there about how far it goes there but there's so many yeses, I can't find the questions at the moment so what we'll do is we'll follow up with that Q&A thing and we'll get that out to everybody through the RDJ, how to handle it and dealing with it there.

                        We haven't really got on to the good performance strong management apart from at the start there, David, where it's in the code that it says, you know, good management, strong management, performance management, you know, peps and such, like, aren't, you know, they're not bullying in and of themselves.

                        And we were chatting before we went live and I anticipate there's going to be an increase in bullying claims as a result of people going back to work. You know, as the economy is opening up, people are used now to working from home. They don't want to go back full-time. That's quite clear, and people are saying, "You're bullying me. You're not sending David home. You're sending me home." Or whatever, and therefore using this code somehow to say managers are picking on certain people, or when they go back just the shock of seeing people again. You can imagine that some people are going, "The way your attitudes changed." Or whatever.

                        So I think it's going to come up. But even dealing with performance, I think a lot of people have gone home . . . employers have put up with levels of performance which are not as good if you like because you've got to thank people for going through the process for, you know, working in non-conducive circumstances, homeschooling, kids all over the place, looking after parents, whatever that happens to be, and working, but that's going to change as we go back. So I could see it as becoming more and more important, so maybe just we move on to the final piece say something about what this performance looks like in performance management and why that shouldn't be deemed to be bullying because that's covered in the Unified Code of Practice.

David:             It is, and I mean that was something that was also in the old Code of Practice but it's actually been fleshed out a small bit more, and obviously if you were performance managing somebody, or not even if you're performance managing but if you're just managing in terms of telling somebody what they have to do, what the particular targets are, the approach you're taking, they may disagree with your approach. They may disagree with how you're engaging at something, but that does not trigger an automatic finding of bullying.

                        I would . . . certainly the Code of Practice is helpful there but what's even more helpful is the Supreme Court's decision in Ruffley, and like I said, the Supreme Court it obviously took the standard definition of bullying but it interpreted what does the phrase, you know, an affront to your dignity. What could be reasonably considered an affront to your dignity? And it raised that bar pretty high. So, you know, it talks about, you know, things being . . . you have to have a kind of a motivation and an intent, and it talks about . . . you know, even the code, as I said, talks about being outside the reasonable norm.

                        And so all of those are very helpful, and remember in the Ruffley case without going into all the facts it was essentially about somebody who did something . . . I think she closed the door in relation to a student, a special needs student, and was being disciplined. So it actually . . . it was a kind of a procedural management of an issue that had arisen. That was what arose, and, you know, it's fair to say the courts weren't overly complimentary on how that process had been undertaken, and it wasn't a good process, but at the end of the day, even with that, they were saying that's not bullying. It may be something else. It may be a total lack of fair procedure. It may be a mess. It may be all kinds of other things but it's not bullying.

                        And then in terms of how you would protect your managers from allegations of bullying, I would always say to people, "Look. You need to sell the reason why you are asking somebody to do something because that is going to be your defence down the line." It's going to be, you know . . . to use the language of equality, it's going to be your non-discriminatory reason, your objective reason, as to why you asked somebody to do X. And, you know, if it's the case that you're saying, "Look. We have to use this particular platform. We have to do this particular thing." You know, we're indicating why that is. We're depersonalising it by relying on the . . . what underpins that instruction.

                        And also use the language that's there in the Code of Practice. It does talk about actually, you know, ordinary performance management. It talks about, you know, reasonable corrective action. So, you know, I would say try and steal that language because, you know, it's always very helpful to say, "Well, look. That's the very language within the Code of Practice that I'm allowed to use." So to say to people, "Look. All I'm doing here is it's ordinary performance management. I'm taking a reasonable corrective action. It's in relation to this particular issue." So use what's there.

                        And I think the new Code of Practice is stronger on protecting those types of claims in terms of . . . but they will arise and they just have to be managed, and it goes back to my first point about when you receive a bullying complaint the initial reaction shouldn't be, you know, "It's not bullying." Let's, you know, put into a place whereby we can tease that out and go back to them, and at least then if you're using that kind of language early on that, "Look. This is just a performance management piece. This is why I'm doing that."

                        And just to circle back just on the issue very quickly that you raised about, you know, people coming back from lockdown scenarios, you know, I do think that, you know, you'll be using language like look at the reasonable instruction of your employer. We've complied with all of our safety protocols in terms of the pandemic. It is safe.

                        I have seen quite a number already coming out of the last lockdown where clients of ours have that difficulty in bringing people back, and the natural instinct for some was to say, "Well, look. We might go down a disciplinary route." I would tend to advise people to steer the employee into a grievance process so that they can raise what their issue is. Allow that to be ventilated. Like, a grievance process is not an enormous process. It can be done. It can be dealt with. It allows you to ventilate that issue, go back, and then as the direction is repeated that, "Actually, look, we have dealt with that issue. We've explained why our protocols are met with and you do have to come back and it is a job that is necessary here." You can rely on the outcome of the grievance, and then if it doesn't necessitate disciplinary action at a later point, you know, it's coming unfought and built on that cornerstone of having been looked at already. So, you know, I'd always be a little bit hesitant to use the hammer first off, you know.

Scott:               Okay, and I suppose the fact that these contact person and the nominated person are there and if they're trained on what good practice is like and that would help as well. I'm currently getting bullied by the sun and there's nothing much I can do about it. It's coming through. I've drawn the curtains and I've left a gap and it keeps shooting threw my . . .

                        Yeah, we're onto the last subject matter everybody and we're going to be looking at remote hearings so we have a final poll for you to have a little look at, and you can see it there. Have you or your organisation attended a remote hearing at the WRC? And we're looking at this number now and it started off very high and it's still fairly high indeed. This audience has a lot of interaction with the WRC, and if kind of maybe stop it there, Rolanda, and you can see that we've got 18%, so 20%, one in five of the people on this broadcast today have been to the WRC. So this is quite a popular subject here.

                        So let's look at the last area which is that the WRC are running cases which is better than you'll get if you've got any employees up north, folks, because there haven't been . . . I think there've been two since lockdown that I've come across that have been published anyway, full hearings. Everything else is just case management discussions across . . . in GB was published yesterday, half a million backlog cases at the employment tribunals in GB, so I think the WRC has done extremely well. A fifth of our audience have been at the remote hearings, then clearly they seem to be working. So maybe give us a little bit there. What's the important factors if you're going to be called to remote hearing? What's your experience of dealing with those, David?

David:             Well, first of all, just to say that when remote hearings started it was very much a voluntary process and it was very tentative, but since September I think it is last year, the WRC is now considered what's called a designated body, and that means that they have the authority and power to order that a remote hearing will take place. So it's not a choice now. It's, you know, determined.

                        And in practice I think what the WRC are doing, unless it looks like something that just cannot for the life of it find a home in a remote hearing, they are pretty much scheduling as far as I can see for remote hearings as an automatic, and even in their public statements they're saying, "Look. Unless the parties can demonstrate how holding a remote hearing would be in some way, you know, against the interest of justice, it's going to be a remote hearing," and that bar is going to be fairly high.

                        So look, remote hearings as awkward as they may seem are here for now. I would admit as well I have to say that when that first came out, you know, it was a slightly horrific prospect from my point of view but I very much changed my mind and it's simply because of the practicalities of it. Like, if you think at a broader sense a lot of the cases the people attending this webinar will deal with they tend to be things like redundancies or unfair dismissals. That's, you know . . . or pay claims or [inaudible 00:42:06], those types of cases.

                        Now if I'm running a redundancy case, really I'm saying there's nothing to see here. It's very standard. Here's why we made somebody redundant. Here's the four or five documents that show we had a consultation process. Here's the outcome letter. Here's the appeal, nothing else here, and that's a very manageable case to make through one of these little boxes in a screen because you are sticking to a fairly tight script. It's actually more difficult . . . now I don't do employee work, but, you know, it is more difficult for an employee to argue in that type of a case. Well, actually all that documentation is there but the real reason is this particular issue or this protective disclosure or this bullying claim or whatever. That's why I was made redundant. So they have to create a whole new narrative. You know, you see that done in a face-to-face hearing with great skill by a barrister or by a lawyer but it's much harder to do through a little box. So I think an employer in your standard run-of-the-mill cases has a little bit of an edge there in terms of, you know, the documents are there in front of people and, you know, it's easier to read what's in front of you and concentrate on that than to hear through a small box a narrative of something totally different being created.

                        In terms of the practicalities of it, those 20% will know that there is . . . I think it was done through Webex. There's a kind of a concierge at the start where an individual will try and tie up any IT issues and think you're given their number that you can . . . but they do disappear after a while so if you do have any issues raise them early.

                        And in terms of how it runs, there's some very, very significant differences in the sense that a lot of cases settle on the morning and that's just not going to happen. It's not going to happen at a remote hearing. And look, it's part of the psyche of the Irish it seems to me that, you know, a lot of employers do not want to settle things and they might yet settle on the steps of the court, but there are no steps in this court so you have to really, you know, bite your lip and go, "Look. If we want to have meaningful discussions, you have to jump in early and have those discussions early." So that's the first major significant point.

                        The other point is that your submissions, there was always obligations to have your submissions in within certain timeframes but they tended to be, you know, more procedural targets rather than anything heavy, but now really you do have to have those submissions in. You're not going to be able to pull from your back pocket some additional document that will catch everyone off guard. So that does mean that the other side has much clearer idea of what your case is. Now, that is supposed to be the case already but it very much has to be the case now and it's just not going to be possible for you to pull something out, some kind of silver bullet out of a hat to mix up my analogies. So that's another aspect.

                        If you're a witness and . . . you know, it's going to be easier. It's a lot harder . . . a lot of barristers have said to me that it's quite difficult to cross examine someone in this type of forum. So, you know, it's a little bit easier. You can have . . . you know, you'll have some . . . probably you'll have your booklets in front of you and it'll be . . . I think it'll be a more pleasant experience sitting in your spare room than it will be sitting in front of a barrister because, you know, barristers are trained in how to, you know, get in under the skin of a witness and draw out a negative response. Sometimes it's done by, you know, not even listening to what your great answer is or, you know, interrupting. You know, there's all these little niggly ways in which they can draw the worst out of a witness that are kind of lost in a remote hearing.

                        The other very practical point is by and large depending on their level of lockdown . . . like, we're in lockdown five, you're not going to be with your legal team necessarily, so, you know, you want to have maybe some kind of a communication setup so that you can deal with raising questions with your legal team. I've done a number where, you know, you might have a WhatsApp group between a number of people just sort if things need to be raised and pushed on they're not lost.

                        But obviously within the context of me in full flow in a case cross examining somebody, you know, you can't always be picking up the WhatsApp at the same time. It's about normally you tap someone on the shoulder and say, "That's not true. Turn to page five." You know, just to be a bit more careful about those interruptions, you know. But by and large . . . look. There's been a struggle. There's no point in saying that it's been rolled out and it's been perfect but, you know, it's better to have a hearing, better to have these things done, better to have them moved and heard quicker than to have them building up the kind of backlogs that you spoke about in the UK.

Scott:               Okay. Thank you.

David:             Remember very often the key indicator of a compensation award is what your losses to date. So if somebody hasn't worked for 18 months when the case is being heard, you know, they're dangling around an 18-months figure. If the case is heard within 6-months, they're dangling around a 6-months figure and that makes a difference.

Scott:               It certainly does. It makes a difference to the likelihood of settlement as well. There's a lot of comments there from somebody from the WRC saying, "Fully agree that early settlement be encouraged so hearing slots are not lost." Yeah, point taken. And is there any advice finally because we've come to the end of the webinar, where the complainant turns up with a partner from a legal firm having only indicated having a union rep on the WRC form, presumably that's an issue for the adjudicator to build . . .

David:             That's an issue to be adjudicated [inaudible 00:47:49], so there are certain representatives that can appear before an adjudication officer and anyone outside of those, a partner in a law firm would be a representative and they just have to indicate that they are now [inaudible 00:48:03] in the matter, but I suppose from the employer perspective maybe they wouldn't have gone on their own if they knew they were going to be up against some pig like myself shouting at them. But, you know, it's up to the adjudication officer really. You can make a case to the adjudication officer, but really I'm not sure that an adjudication officer would deny somebody a right to legal representation just because you didn't have legal representation.

Scott:               Yes, it's not really the same as the situation where you would [inaudible 00:48:32] an internal disciplinary hearing. And just finally are family allowed to attend the remote hearing with the employee? It's difficult to stop them if they're operating from home.

David:             Yeah, well again that is something that happens actually in face-to-face hearings that sometimes an adjudication officer will always ask who the people in the room are and they'll write down their names and what their association with the parties is and if somebody says, "You know, I'm a family member." Then it'll be up to the adjudication officer to determine . . . well, look. Am I going to allow that person to stay here or not?

                        You know, on the early stages or lower levels of lockdown, you know, it came down to numbers. It came down to "Could we have an extra person in the room like that?" You know, by and large, I tend not to object. I do mind sometimes if a family member is going to advocate on behalf. That can be a bit testing and a bit more difficult and isn't something I would try and object to, but if somebody is just going to sit there, you know.

                        But I have had situations for example where the family member is also an employee at the same organisation and that might be something you would raise and say we'll look from a confidentiality perspective I'm not comfortable with that. But I guess a bit of common sense, a bit of common sense, you know. Pick your battles.

Scott:               Thank you very much, David. Thank you to everybody else as well. We will get back to you about all those questions that came particularly near the beginning about the code and whatnot and gather those up and ask RDJ to kind of do how-do-you-handle-it Q&A-type thing, so thanks for kind of being volunteer for that. David, that was very good.

David:             No worries, thank you.

Scott:               And we'll take onboard the messages you've sent there, everyone, about the training for the contact person and the nominated person in relation to the new code and see what we can do there as well. The next webinar you can see there the next webinar coming up is going to be on Monday that we've got with managing probationary periods with Caroline McEnery and Rolanda and I will be back with Jennifer Cashman on the 21st of May when we'll be dealing with other topics whatever they're going to be. Whatever is topical come May that's what we're going to be dealing with. If you want to get in touch with David McCarroll, then please do. That's his contact details there. You can follow-up with those questions. So thank you. Thank you, everybody for listening. Hope you enjoyed it.

David:             Thank you.

Scott:               You can listen back this afternoon and remember it's going to be a podcast. Have fun, take care. Bye, everyone.

David:             Thanks, all. Bye.