Employment Law at 11 - August 2021

Posted in : 'Any Questions' Webinar Recordings on 6 August 2021
Seamus McGranaghan
O'Reilly Stewart Solicitors
Issues covered: Unfair Dismissal, Discrimination and Equality, Coronavirus

In this month's webinar Seamus McGranaghan, Partner at O'Reilly Stewart Solicitors is joined by Christine Quinn, Learning and Development Officer at Legal Island, discuss:

  • Dismissal for activities outside the workplace – potential fairness and lawfulness
  • Recent GB Consultation on Sexual Harassment in the Workplace and position in NI on preventing sexual harassment
  • Wearing of face coverings/masks in the workplace if mandatory use is removed

Useful resource: 

https://www.gov.uk/government/consultations/consultation-on-sexual-harassment-in-the-workplace/outcome/consultation-on-sexual-harassment-in-the-workplace-government-response

 

Seamus McGranaghan will be delivering the Long Term Absence and the Law session at Legal Island's Annual Review of Employment Law conference on 10th and 11th November

Transcript 

Christine: So good morning, everybody. Welcome to the "Employment Law at 11" here at Legal-Island, coming to you from a very wet and windy Belfast, unfortunately.

So first things first, let's introduce who'll be speaking to you today. So my name is Christine Quinn. I am one of the learning and development officers here at Legal-Island. And if you want a bit of a nosy into my background, until I joined Legal-Island in June there, I was an employment solicitor. I'm qualified in England and Wales, so a lot of my time practising was over in London, but I returned to the homeland and I've also practised here in Belfast. And then, as I said, I joined Legal-Island in June there.

I'm very pleased to be joined today by our regular contributor, Seamus McGranaghan, who's the director of commercial over at O'Reilly Stewart Solicitors, an employment law specialist.

And I'm very pleased to say he's also one of our keynote speakers at the Annual Review of Employment Law on 10 and 11 November. So if you do want to sign up to that to hear Seamus and lots of other great speakers, you can click legal-island.com/events. And also look out for the email follow-up to this webinar, which will have all the details and details of other speakers as well.

So I think, first things first, we've got a few polls for you today. Katie, can you bring up the first poll for me? Okay, so the poll should be up on your screen now. "Do you feel that masks and PPE wearing should be mandatory in the workplace?" If you could click yes or no there and give us an insight. I genuinely don't know what way this one is going to go, so I'm interested to see what you think.

Okay. I think most people have voted there. Let's have a look at the results. So the results, 65% of you feel that masks and PPE should be mandatory in the workplace. Seamus, are you surprised by that result?

Seamus: I was like you, Christine. I suppose I didn't know what to expect thinking about the various different industries and workplaces that our listeners come from. But on a personal basis, certainly at the minute, I'm in favour of wearing masks and PPE where it should be and where it is necessary in respect to PPE. But in respect to mask-wearing, yes, I think at the minute I certainly side on the continuation of that, for the time being anyway.

I think it does depend upon your industry. It depends upon your workplace. It depends upon the makeup of your workplace, if you're able to socially distance in work, and you're not in contact with other people during your working hours. Maybe it isn't necessary to have to wear the facemask.

But I would just wonder will things change in relation to that? Obviously, in England now, the mandatory aspect of wearing facemasks has been lifted. And if we were to look at that in four weeks or eight weeks' time, would those figures very much differ to where we're at now? I think there are lots of contributing factors towards that.

But yeah, I mean, I'm encouraged by that. I think certainly the regulations at the minute are that we should be wearing facemasks. There are very limited occasions where we shouldn't be wearing them. And I'm pleased to see that there's a general follow-through with that.

Christine: Yeah, I think we're coming to a bit of a crossroads, aren't we? The cases seem to be going up but the government advice is changing slightly, and also people are just getting fatigued. So it'll be interesting, as you say. In a couple of weeks, we could all have a completely a different view on that.

Okay, so let's have a wee look on our second poll. Katie, if you could bring it up for me. "Do you feel the law in relation to preventing sexual harassment in the workplace needs strengthened?" If you could select yes, no, or unsure.

Let's see what everyone thinks. Okay, so it looks like most people have voted there. Let's have a look at the results. Again, I don't know what this is going to be. Okay, so 46% say yes, but we've got nearly the same amount saying they're unsure. So what's going on there, Seamus?

Seamus: Yeah. Look, it is a topical issue over the past number of years, obviously, with #MeToo and Harvey Weinstein and all of the sort of large media focus in relation to sexual harassment in the workplace. I know that we're going to discuss later on the consultation process and the government's response to the recent consultation. But look, it seems clear that there is additional work that needs to be done. And I think that it's not surprising that we've 46%. So the majority of people are saying yes, there's further work to be done.

We did have last week the Equality Commission case of McNicholl and Bank of Ireland receiving a lot of media attention as well. And the issues are obviously still out there.

The element of being unsure, at 39%, that is quite high. Usually, the unsure element is the lower end of the polls that we would see in respect to the voting, and that's telling as well. I suppose it's the idea around the aspect that we do have legislation, and quite robust legislation in Northern Ireland, in relation to sexual harassment in the workplace. I think we all know what the lay of the land is, that we know that it is something that is illegal under the law.

There probably is an element of people saying, "Well, what more is it that we could do in respect of that?" And that's maybe where that unsure element comes from. So maybe we'll get an opportunity to explore that a bit later on then when we talk about the government's response to the consultation,

Christine: Yeah. So "The laws are there, but are they working?" I suppose is the question.

Seamus: Yes.

Christine: Great. The third poll then, the third and last. If you can just bring that up for me, Katie. So this is a bit of information for Legal-Island that you could help us out. We're planning a new eLearning course. And would you be interested in delivering some bullying training to your staff via eLearning? Obviously, preventative training rather than . . . If you could put yes or no there.

I think that everybody has voted actually. That's brilliant. Thank you. Fantastic, 84%. So we are going in the right direction. Look out for some further information on that eLearning course. We'll be in touch about that. Thank you very much for your input.

Great. Thanks, Katie. And if you want to bring up the next slide, that would be helpful. Today's agenda, the first thing we're going to be discussing is dismissals for activity outside the workplace, their potential fairness and how lawful they are.

Then we'll move on to the recent consultation on sexual harassment in the workplace undertaken in Great Britain and look at how Northern Ireland will react to that.

And then we'll move on to the wearing of face coverings and masks in the workplace if mandatory use is removed.

So just on that first question, as Seamus alluded to, it's very much in the media at the minute, activities outside the workplace. And I think it used to be kind of indiscretions at the Christmas party were the activity outside the workplace that got people into hot water, but now I think social media has really changed the climate. Public and private is no longer . . . public and private is very blurred. Work life and private life is very blurred due to social media, and what we do and say is now really out there for all to see in a way that it never was even a few years ago.

So we've seen a few high-profile cases. We've got the Maya Forstater case over in England. That was a lady who tweeted her views on the ability to change your sex, and her employer took issue with that. And then we've got a few cases of footballers and a few estate agents as well.

So, Seamus, what developments have you seen in this area?

Seamus: Well, it's certainly one that has come to the fore. Certainly, if we go back to sort of recent times, there were some media cases in and around the Black Lives Matter protests that happened at the time, and the social media sort of publication of that.

And there were a number of cases where there were tweets or social media postings that were made by employees sharing their views in relation to the Black Lives Matter position. And there were allegations of racism as a result of those tweets, and employers that made decisions to dismiss and terminate contracts of employment of employees.

More recently there, we've come across the comments following the Euros final, and specifically in relation to the racist comments that were made online. Specifically, there was an estate agent in England who was dismissed from his employment as a result of comments that he made online in relation to some of the English football players.

In addition to that, there was the incident of Professor Chris Whitty in a park in London. Again, that was an estate agent. Not to vilify estate agents and footballers or football fans or anything like that, but it's those sorts of incidents that happen.

And at times, it can be around matters that really the people get passionate about with their football games or their social agendas that the people have. It can bring out the best and the worst in people. I suppose that's just a cautious reminder that comments that are placed online . . .

But looking at it, Christine, I suppose dismissals for events that have taken place outside of work . . . I mean, there's nothing new in relation to that. We've had that before. The issue now is really the blurring of the lines of private and work life, specifically in this era where we're working from home. You can really understand and see how those lines could be blurred.

Key things that we're looking at here. The key factor for consideration is whether the conduct outside of work has a bearing on the employment relationship. That is the key issue that we're looking at. And really, the types of things within that that we're looking at are, "Is there a breach of a company policy or procedure? Has the actions of the employee impacted on the trust and confidence?"

A key aspect of the employment relationship is the trust and confidence that the employer has with the employee, and if there is a fundamental breakdown of the trust and confidence, does it mean that the relationship is at an end or can it be repaired? And so the trust and confidence aspect is definitely an important one.

The bigger one will be, when it comes to social media postings, the damage to the reputation of the employer, specifically if these cases or instances are picked up by media outlets. We have that case of Jake Hepple who was the Burnley fan, and he arranged for the banner to be draped over the Etihad Stadium in England with "White Lives Matter". And he was dismissed from his employer as a result of that, and they took a strong stance in relation to them saying that they didn't tolerate any form of racism.

But yet if you . . .

Christine: Yeah . . . Sorry, Seamus. I was just going to say I think previously I would've thought the profile of the employer was an important thing. But I suppose with the guy you've just mentioned, the Burnley fan, I couldn't tell you who his employer are, but they still felt that they had to take action, I suppose. So do you think it doesn't actually matter as much anymore whether you're a high-profile employer?

Seamus: Well, I think probably in relation to that case, the fact that the act was on such a large level and that it did receive significant media coverage, that no doubt had an impact.

I suppose the other side of the argument, if you do look at that case and you read some of the comments online associated with it, some people view it very clearly that it was an act of racism, that the employer was correct and that they should have dismissed the employee. And others then talk about issues relating to free speech. They talk about the right for a person to make comments, to publicly say what their beliefs or what their position is. So there's that balancing act that has to take place.

And certainly, there is a balance to be struck absolutely in relation to the employee's right to privacy and the employer's right to protect its reputation.

That said, I think, Christine, that's exactly the point about of that. Fairness is more difficult to balance if you have actions that have been taken that have a widespread impact, or where they've been picked up on social media, where they've been retweeted and then there has been media aspects that have come about as a result of it. And it certainly would put any employer under specific pressure.

But a couple of other points that I thought were worthwhile pointing out was . . . I think that there is a fear aspect for the employer to consider these matters. So if there's an event that takes place or something that takes place that raises issues for the employer, I think that the employer does need to look at whether it has impacted the employee's ability to carry out their job and to do their work after the misconduct.

I think the relevancy of the conduct to the workplace and the risk to the reputation is also important, and for me, that's probably where we would be looking at issues relating to trust and confidence.

And the damage then to the relationship. And I suppose not just between the employer and the employee, but I was thinking more so in and around the potential damage and fallout between colleagues as a result of these sorts of matters that take place as well. You could have somebody with a very strong belief that would say, "Look, I don't agree at all with that". And they could even potentially raise a grievance in relation to the employee returning to work.

So you have to think about the context of how does that person return to work and will that raise an issue with other staff and with colleagues within the workplace?

And then also, I think that the last thing really to look at is any steps that the employer could take to allow the employee to remain in their employment without jeopardising the business itself. So is there a wider impact to the employer's business?

I want to couch all that, as well, Christine, by just reminding everybody that we do have a statutory disciplinary and dismissal procedure in Northern Ireland. If there's any failing in relation to follow that, you're likely to have an automatic unfair dismissal. So it's really important that there's a fair investigation that's conducted and that you look at all other avenues to dismissal.

So is dismissal the ultimate outcome here, or are there other penalties that could be imposed instead? And ultimately, of course, why was the dismissal fair? What are the facts that are resulting in the dismissal being fair?

I think also that there are things that employers could do in relation to strengthening their position when it comes to activities outside of work, and I think that there should be a clear code of conduct that the employer has set out so that the employees are aware of the matters that could cause difficulties or that could raise concerns for the employer.

You don't always necessarily think of the actions that you take outside of work having an impact upon your job or your work. So I think any tribunal looking at that will look to see, "What has the employer told the employee about that? Is there a code of conduct?"

I think specifically . . . we've talked about this previously, but a social media policy as well is really . . . I know within your prior work as well, Christine, that you've maybe come across issues in relation to having a clear social media policy and trying to enforce that.

Christine: Yeah. I spent some time at the BBC and it was a real can of worms for us in the employment team there, because obviously, we were dealing with people with media profiles in their own right. They were also representatives of the BBC, but they also had their own minds and their own opinions on things. So even back in those days, which was maybe five or six years ago, it was a big problem for that organisation. And I think that it has just become more problematic, because social media is just so prolific. It's everywhere.

And there's also, I think, an expectation that people want to bring their whole selves to work as well. And we all love a good debate on a Monday morning. "Did you see that on TV? Did you see this on the news?" and an exchange of views. So I suppose it's just where is that line between showing yourself as a real human being with opinions and not offending other people, not letting it encroach on your work? It's a really difficult but very interesting topic I think.

Seamus: Yeah. And I think the other thing is you always need to be aware of . . . If you're going into work and you're making comments, or you're posting things outside of work, not everybody at work is going to agree. Not everybody at work is going to have the same opinion, and it's the risk that you cause offense then as a result of that.

Christine: Yeah. I mean, if you are interested in hearing a wee bit more on this topic, we're actually covering it in the Annual Review as well. So on 10 November, we've got some great speakers. Going to have a bit of a panel discussion on it. We've actually secured Peter Daly, who was my Maya Forstater's solicitor, and he's going to be joining in that panel discussion. I think it'll be a really interesting one. So it'd be great to see a couple of you there.

Seamus, do you have anything else you want to add on that particular topic?

Seamus: No, I think that that should cover it. But I do think that going forward, we are going to see . . . I mean, there is a judge and jury happening in media in relation to these sorts of matters, and I think that we will see . . . Certainly, I think it puts pressure on employers to make decisions, make the correct and make the right decisions, but make sure that they're fair and balanced as well.

Christine: Yeah, brilliant. Thanks very much, Seamus. So let's have a look at our next topic. Last week, the Legal-Island reported on the outcome of a recent GB consultation on preventing sexual harassment in the workplace. As Seamus mentioned, 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.

An just last week, we have 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.

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 [inaudible 00:24:05] to 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.

Christine: Yeah. Brilliant. Thanks very much, Seamus. So our final topic is the wearing of face coverings, or masks, in the workplace if mandatory use is removed. So obviously, this particular topic is born out of the decision in England to have their freedom day, and it's no longer a legal requirement to wear masks, but the government advice is you probably should.

And we've seen some big names in England kind of breaking rank, not least the mayors in London and Manchester. So they've made it compulsory to wear masks in the tube and the trams in those big cities.

And then we've other big name kind of corporates, easyJet and Ryanair are saying, "No, masks are still compulsory on our flights".

So I suppose first things first, Seamus, what's the position in Northern Ireland? What has the assembly reaction been to the English announcements?

Seamus: Well, the changes obviously came into place on 19 July in England. And I suppose the helpful thing is that we get an opportunity to sit back and watch and see how that unfolds. We have a bit of a benefit in relation to that. There has been a review of the regulations. So what we have is The Health Protection (Coronavirus, Wearing of Face Coverings) Amendment Regulations (Northern Ireland) 2020. That's the piece of legislation that we have.

Christine: Is that the title?

Seamus: Yes, that's it. I know it is. The position has been that from 26 July, there has been a review in relation to that, but the only review is that people attending indoor religious services in Northern Ireland no longer have to wear a face-covering during the service, but you're still required to wear your facemask when entering and exiting the building. And the guidance recommends that worshippers keep their masks on during services.

I think that a number of the religious organisations and churches have asked their parishioners to retain the position of wearing their mask if they can. Obviously, they can't enforce that any longer, but they are asking people to do that.

But the position remains that in Northern Ireland, face coverings remain compulsory in all other settings: pubs, restaurants, hotels when customers are not seated at the table, in taxis and private buses, and for staff in retail shops, in public areas, Civil Service offices, including jobs and benefits offices, when you're boarding a plane, in banks, buildings, societies, credit unions, and post offices, and for driving instructors and their students.

But I suppose the interesting aspect is what happens if we get into a situation where it's not mandatory and things then do become grey and difficult and what we do. Look, we can take those lessons that they have in England.

I think from an employment perspective, it is difficult and grey. I can certainly envisage situations where people have been wearing their masks but they've been wearing them begrudgingly and they don't like wearing them. They find them hot. They find them hard to breathe. And you could certainly see the crossing of swords between employers, employees, and then between employees themselves, for people that want to continue to wear masks and others that don't.

And I suppose really, for me, I stay on the cautious side. I think for me on a personal basis, I will be wearing my mask. But at the same time, I know that there are others, and I know of others, that won't want to wear their mask any longer.

I think, for me, for the employment aspect, the big issue is about health and safety. And I think a risk assessment is going to be key, and it will vary across the board in relation to the different industries, the different workplaces that we work in, whether we can still continue to socially distance, whether your workplace permits that or doesn't permit it, and other safety measures that you already have in place. But I think a risk assessment will need to take place.

I think that realistically you're going to have to have a signed reason for imposing the obligation to wear a mask where it's not mandatory.

We were talking just briefly there, Christine, before we came on and I was saying to you about from a risk assessment point of view, I see an uptick of issues for employers where numbers have increased in relation to the virus. I think that they expect the numbers to continue to increase for another period. And the question is, does it make good sense to maintain wearing your mask in the meantime?

But from a risk assessment point of view, is it important from a health and safety point of view that, while you're in work, your employer takes the view on a risk assessment that you do have to wear your mask? I think while the numbers are high that there is a reasonable excuse for asking people to do that.

I think also that employers are seeing an increase of people in the workplace either having symptoms or testing positive, or testing negative but still having to self-isolate. And I think where those periods of self-isolation are on-going, a risk assessment may tell you that it's still appropriate to impose the wearing of a facemask.

I think, as you had said earlier on, it is relatable down to where we're at in relation to the numbers. And I know that the government's position is that numbers are going to increase, but if there's large vaccination taking place, that does reduce the risk. But in saying that, my understanding is that just because you're vaccinated, it doesn't mean that you won't either catch the virus or it won't stop you spreading the virus.

So there's a lot for employers to think about. I do think that it's really important, whatever decisions are made, that there has to be open and clear communication with staff and employees about that.

Christine: Yeah. I think we were kind of saying it needs to be the carrot versus the stick approach. You need to kind of get the employees on board with your way of thinking and bring them along that way.

I think what's happened in England has created a real problem for employers, and I think the government have kind of pushed it down the line to employers, because there is just this weird tension going on at the minute between the numbers going up and the relaxation of the restrictions. And employers are therefore in kind of a bit of a no man's land of what to do. So, yeah, it's a very tricky one, really.

Seamus: Yeah. And we discussed on the last webinar about a number of large, significant employers that have said about a return for staff to the office in September also. These are going to be very real issues that employers are going to have to deal with if they are talking about a return to the workplace.

So I do think clear discussion with staff, get the views of staff, get an understanding of what their concerns are, whether it is for having to continue to wear a mask or not wear a mask. But I think either way, employers are going to have to have a supportive stance in relation to their employees, and they're going to have a balancing act of those employees that want to wear a mask and those that don't.

Christine: Seamus, if and when it does relax in Northern Ireland regarding masks, do you think that we can require employees and customers to wear masks even if it's no longer mandatory? Do you think as long as we've got that risk assessment under our belts that should start to help us in that direction?

Seamus: I mean, where it isn't mandatory and where it's not obvious . . . I think there are still roles and jobs where the wearing of PPE and masks is going to continue to be necessary. I'm thinking in sort of care home settings and things like that, hospitals, the usual ones that would use those. But I do think that where it's not mandatory and where it is challenged by an employee, the employer is going to have to have their reasoning. They're going to have their conclusions of their risk assessments set out so that they can advise staff of the reasons as to why. And there's going to have to be a clear justification for that also.

Christine: Yeah. And I've just seen a question from a delegate here. So is mandatory wearing of face coverings reasonable where two metres can be maintained?

Seamus: Where you can socially distance and where you're doing it over two metres, my understanding is that you don't have to wear a mask at that point. So if you're in a meeting and everybody is spaced out, you may not have to wear a mask. Some people will choose to wear their mask and maybe take their mask off whenever they're speaking only. But my understanding is where you can provide social distancing, there isn't that strong necessity to wear a mask also.

Christine: Okay, great. Have you any kind of final points on that one, Seamus?

Seamus: I'd maybe just make the point that even with the social distancing in place, if you're moving around an office or a workplace and you're in common areas, I think it's important that . . . It's not just a circumstance of you don't have to wear a mask in those areas because you're two metres away, because you may run into people in those common areas and things like that. So it's about the practicalities, but I'm sure that there's more to come in relation to this, this specific issue of masks.

Christine: Brilliant. So I think that brings us to the end of our session. All that really remains for me to say is thank you very much to Seamus for coming along again. We will see you all hopefully on 3 September. And I'd also just like to thank Katie for doing all the tech support this morning. She's been brilliant. I appreciate you all listening. Thank you all very much, and we'll see you soon.

 

This article is correct at 06/08/2021
Disclaimer:

The information in this article is provided as part of Legal-Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article.

Seamus McGranaghan
O'Reilly Stewart Solicitors

The main content of this article was provided by Seamus McGranaghan. Contact telephone number is 028 9032 1000 or email seamus.mcgranaghan@oreillystewart.com

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