CIPD Voice: Issue 13

Stories of sexual harassment ranging from Hollywood to Parliament are rarely out of the news but it’s important to remember that most incidents of harassment or sex discrimination – in their many different forms – happen in a far more mundane setting, including the workplace. Which is why we welcome the Fawcett Society’s recently published Sex Discrimination Law Review, which cites 2016 TUC research showing more than half of women overall and nearly two-thirds of women aged 18-24 years old had experienced sexual harassment at work.

Protection from third parties

The report makes several far-reaching recommendations relating to gender equality at work, including some to tackle sexual harassment, notably a reintroduction of Section 40 of the Equality Act to guarantee people at work legal protection from harassment from third parties such as customers and suppliers. Under Section 40, if harassment had previously occurred on two occasions and the employer was aware of it, but failed to take reasonable steps to prevent it from happening again – known as the ‘three-strikes rule’ – then the employer could be held liable. The harassment did not need to be by the same third party or be of the same nature.

Section 40 was repealed in 2013 as a result of the Coalition Government’s rationale to cut red tape for business. So should Section 40 be re-introduced? First, there should always be a stronger argument for dismantling equalities law than merely reducing red tape for business to aid economic recovery. However, the legal provision was barely used and was far from perfect as it stood, particularly the 'three strikes’ rule, which was criticised because it required an employer to know the employee had been harassed at least twice beforehand.  The Fawcett Society’s report proposes an amendment so that the law would require only a single prior incident of harassment by a third party. 

In principle, employers should hold some level of responsibility for the conduct of third parties toward their staff. But without doubt a more detailed review and wider consultation of this aspect of equalities law – and how it would work in practice – is needed first.

Tackling bullying and harassment in the corridors of power

Also hot off the press is the eagerly awaited review of sexual harassment and bullying in Parliament by the Cross-party Working Group set up by the Prime Minister. Sexual harassment and bullying can thrive where the power imbalance in relationships is at its most extreme; sadly, this has been sharply illustrated by the alleged behaviour on the part of some MPs, a couple even losing their Cabinet or Party positions as a result of their inappropriate conduct.

In the survey carried out by the Working Group, 39% (of the 17% of Parliamentary staff who responded) reported experience of non-sexual harassment or bullying while 19% reported experience of sexual harassment, including witnessing sexually inappropriate behaviour, with women reporting twice as much as men. The review unsurprisingly – but quite rightly – concludes that ‘the evidence, particularly from staff, was that a change in culture is both urgent and essential’, but that this aspect is an ‘ongoing and longer-term project’ wider than the Working Group’s terms of reference.

In the meantime, the review makes a raft of recommendations including new policies and procedures such as the development of (a) a Parliament-wide behaviour code and (b) an independent complaints and grievance scheme including two new Parliament-wide policies for responding to and managing complaints of (i) sexual harassment and (ii) bullying and harassment. Importantly, the policies will define ‘sexual harassment’ and ‘bullying and harassment’, and detail new procedures for action against sexual harassment and bullying and harassment as disciplinary matters across the parliamentary community. Where ‘formal disciplinary action upholds allegations of serious misconduct, employees may be dismissed, and MPs and Peers may be suspended from either House and face recall or expulsion proceedings.’

We welcome the alignment of the new grievance and complaints system with a disciplinary process, and sanctions, as grievance and discipline need to be part of an organisation’s holistic dispute resolution framework with recourse to disciplinary action in proven cases of misconduct.

The CIPD was invited by the Leader of the House of Commons the Rt. Hon. Andrea Leadsom MP to give a written submission to the cross-party Working Group. In our written evidence, we advised that the new system ‘needs to be perceived as credible, effective and transparent, particularly by those individuals who play a less powerful role in the employment relationship and other relationships at work.’ We therefore welcome the Working Group’s recommendation that the new policies be written in consultation with relevant stakeholders including MPs, Peers, staff representatives, trade union representatives, the Independent Parliamentary Standards Authority (IPSA) and relevant officials within both Houses.

Where there are complaints, it’s also a positive step that the new system will provide for the practical and emotional support of complainants, including the recommendation that complaints will be handled by a specialist, trained Independent Sexual Violence Adviser as well as face-to-face support available for complainants and alleged perpetrators. We also welcome the provision of an informal route to resolve sexual harassment complaints where appropriate and where a complainant prefers this type of resolution which would be led by an independent investigator with a specialist qualification in understanding sexual violence.

Prevention is better than cure

When dealing with harassment at work, prevention is better than cure. Engaging with people on the issue and raising awareness of an organisation’s zero-tolerance policy for unacceptable behaviour are key to avoiding incidences of bullying or sexual harassment occurring in the first place. A workplace environment which values difference, and is free from hostility and based on tolerance, will enable people to contribute more effectively and achieve higher levels of job satisfaction. People cannot make their best contribution if they are working in fear of harassment or bullying.

We therefore welcome the Working Group’s intention that a core level of training will be available to everyone, underpinning the new Behaviour Code and that, for those who employ or manage others, training will be available to assist professional practice. Further, the report recommends ‘the development of comprehensive training to help MPs, Peers and staff across the estate to understand and prevent harassment, including sexual harassment, bullying and discrimination.’

It is essential that this training is put in place as soon as possible and that all those responsible for managing people participate. Parliament is not a typical workplace; aside from staff of the house employed directly by Parliament, it comprises 650 MPs, some of whom are also mini employers, many presumably with limited experience of people management. Senior leaders, managers and MPs, who hold unrivalled status, need to role-model and champion the highest standards of dignity and respect and set the tone so that people feel secure and can get on with their work without worry or fear of recrimination should they raise any concerns. This kind of cultural change will not happen overnight, as the report recognises.

Expanding people management support to MPs

We note the Report’s suggestion that a ‘Good Employer Standard’ could be developed for MPs and Peers who employ staff and ensure that all appropriate training is taken up by them and their staff members, but think that the steps taken to improve management practice needs to go further. Our understanding is that the current provision of HR support to Members is limited, and the report’s focus is ‘that the staff of MPs and Peers need HR advice across the range of employment issues that might arise.’ 

Therefore, while we welcome the Working Group’s recommended procurement of an HR advice service and handbook for Members’ staff, we would recommend that a more robust HR support service be provided to help guide MPs in their people management practices, with the aim of building trust-based working relationships with staff and an inclusive, egalitarian working environment to help prevent individual disputes arising in the first place. As we stated in our evidence to the Working Group:

‘Given that many Members employ their own staff and Parliament effectively comprises hundreds of small employers, we believe it’s crucial to enhance the level of HR support available to Members and their staff.’

To address this, we believe there is an opportunity to set up a flexible, affordable, shared HR support service for MPs and their staff based on the CIPD’s successfully evaluated People Skills model for small firms. 

This could provide, via experienced CIPD-qualified HR consultants, expert and bespoke face-to-face and telephone advice on all employment and workplace issues as well online resources and group training events to help all those who manage people to understand their responsibilities and to get to grips with challenging workplace issues. The HR support service would be available on an ‘as and when’ basis and would be underpinned by a framework of core people management and equality policies to provide a consistent framework for appropriate behaviour and encouraging an inclusive culture.

In summary, the Working Group’s report is a strong step in the right direction but the more deep-seated cultural change for those working across the Parliamentary estate needs to be underpinned by strong leadership and people management practices.

Rachel Suff

Rachel Suff, Public Policy Adviser, Employment Relations

Rachel Suff joined the CIPD as a policy adviser in 2014 to increase the CIPD’s public policy profile and engage with politicians, civil servants, policy-makers and commentators to champion better work and working lives. An important part of her role is to ensure that the views of the profession inform CIPD policy thinking on issues such as health and well-being, employee engagement and employment relations. As well as conducting research on UK employment issues, she helps guide the CIPD’s thinking in relation to European developments affecting the world of work. Rachel’s prior roles include working as a researcher for XpertHR and as a senior policy adviser at Acas.