Seamus:  Well, it becomes a dangerous and unsafe place to work if that is the position within the organisation. And there are so many online forums now in relation to where employees can express their unhappiness or where they're unsatisfied with things in work. And when it comes to recruitment and retention of staff, this has serious potential to damage the business in such a negative way.  

There are individuals that you would hear saying, "Well, no, I wouldn't work for that company. Do you not remember?" Those things stick, particularly whenever there has been reported cases in the media or there have been court cases or tribunal judgements and things like that as well.

I think that the main damage that it can do for the business is the internal damage in respect of the employees.  

You'll remember this from your time in private practice, how unsettling any tribunal case is for an employer. And there's often a real denial sometimes whenever you're acting for the employer that anything ever bad happened and, "No, no, this couldn't happen in my organisation", particularly in this jurisdiction where it's quite small. Often, businesses are small, family-sized businesses.  

And a lot of these cases that you see are preventable, or certainly they wouldn't get to a tribunal stage if there had been appropriate action taken at the time to ensure that there was a proper investigation, grievances were taken seriously, the perpetrators were brought to task in respect of their actions, and where victims felt that they were safe and happily prepared to report matters to their employer and not have fear of reprisal.

A recent case that I did that we resolved in judicial mediation, one of the issues that came out of that through judicial mediation was that the employee had been absent from work from the grievance happening, because there was a lengthy period when the grievance was submitted until there was any sort of outcome that was issued.  

The employee had remained off work and, up to the point of the judicial mediation, was still absent from work. And the concern for the employee was that "Because I haven't been in work, everybody thinks it's my fault or that I've done something wrong". Yet the alleged perpetrator has been in work and, in fact, had been promoted.

You're taking it from the other aspect as well, and that was one of the aggravating factors during judicial mediation that was pointed out, of how that could reflect badly at a hearing if that evidence was to be borne out.  

So, there's serious damage that could be done with the employer. And there are lots of things that the employer can do, and there are lots of aspects that the tribunal will look at and investigate in relation to the employer as to what steps they've taken in order to ensure that these things don't happen.

Christine:  And I suppose there's also just the idea that there could be stuff going on in your organisation you have absolutely no idea about. If there's a culture of, "Oh, don't say it. Don't rock the boat", you're never going to know that there's somebody potentially breaking the law, getting you into deep water, and you know nothing about it because your employees don't want to share it with you.

Seamus: Exactly. But I think just around that aspect of active bystander . . . You hear the phrase innocent bystander, and a lot of the times somebody never intends to be in the position of witnessing or being the party that comes across these sorts of issues happening.  

But I think maybe around some of the important aspects for training that an employer could have is that there's sometimes a risk . . . and we've come across those cases where somebody does step in and just makes the situation a million times worse. There could be a brawl and fights and violence and things like that that arise as well.  

I think just around being an active bystander, what I would say is that that's somebody who recognises the behaviour as being inappropriate, they choose not to ignore it, and they take safe and reasonable action to challenge, to report, or interrupt the behaviour that they see.  

I think what's important there is that the active bystander doesn't mean that somebody's confronting situations aggressively. It means that you're helping to create a respectful workplace culture.  

So, thinking about how do you go about doing that, I think some of the examples could be that you're challenging inappropriate jokes, that you're supporting a colleague maybe who has experienced or is experiencing some form of harassment, and that you're reporting your concerns to management or HR.  

And that's the key to this as well. A big part of your culture in your organisation has to be that if you do step in and interrupt unacceptable behaviour, it has to be done safely. But you should immediately then be reporting that to the appropriate channels within the organisation, whether that be the line manager or through to HR as well.  

So, I think that if you are stepping in and interrupting, there needs to be training around how you do that safely, because there could be somebody that would just go in and thump somebody in the head and say, "But it was okay for me to do that. It was fair to do it because you didn't hear what they were saying to the other person". And the response will always be, "Well, that's never an appropriate response", and those sorts of things.

Then it's just about the maintenance and the aftercare as well for someone that has had this. It's about checking in with affected colleagues after that.  

I suppose it's interesting that there's currently no specific law in Northern Ireland that would impose any sort of direct legal duty on employees to act as active bystanders. So, there's no requirement for anybody to do this, but I think it's really important.  

And just given where the case law has gone and given where society has moved to, every workplace needs to be a safe workplace where someone feels happy and safe that, even if they don't feel confident stepping in, they know that they can go and report it and they know who they can report it to and that there will be something done.

What we do have in Northern Ireland, though, and what our laws do say, and what all of our guidance . . . There are lots of good and useful resources from the typical Labour Relations Agency guidance, the Equality Commission guidance, that will say what you need to do.  

What the law does say is that you need to maintain dignity at work, you need to prevent harassment taking place, and you need to be creating a good and harmonious working environment.  

And some of that guidance from the Equality Commission and the Labour Relations Agency talks about things like early intervention, shared responsibilities, that there are respectful workplace cultures, and that there's staff training on unacceptable behaviour.  

It comes back to that point that employees need to be aware and workers need to be aware what's acceptable and what is not acceptable to the employer, what the expectations are.  

And then it's back to this aspect of employers are expected to take reasonable steps to prevent harassment. What I would say on that is that active bystander training specifically is increasingly viewed as one of those reasonable preventative measures that an employer should be providing to staff.

Why is staying silent when you see wrong-doing not an option anymore? 

Christine:  And I suppose in the culture we're in now,. Staying silent can sometimes say, "Well, I might agree with what that person's doing or saying". It's really important that the organisations get into people's head, "If you see it, you have our authority to do something, to speak up, to step in".  

Because you could be creating an environment where there's a bit of sexist jokes going around, there's a bit of racist jokes, but everyone feels uncomfortable and nobody says anything. And that's creating that hostile environment, isn't it?

Seamus:  Yeah. Absolutely. And even if you look around recent sort of controversies to do with sexual violence against women and the Mandelson scandal in Westminster parliament at the minute, the societal sort of position is really around accountability. And that aspect of being a silent bystander is almost just as bad as being put up there as the person that perpetrated the events themselves. 

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