Date: 05/02/19 | Duration: 00:18:59

The past few years have seen a dramatic increase in the number of high profile bullying and harassment claims across industries and sectors, from daily newspapers and multinational corporations to government bodies. With scrutiny high and both employees and consumers demanding more transparent practice, it is essential that HR teams have appropriate policies, processes, and practices in place. In this episode we talk to Julie Dennis at ACAS about how you can best handle harassment claims, and to the CIPD's Head of Public Policy Ben Willmott about the future of non-disclosure agreements (NDAs).

Philippa Lamb: If there's one workplace issue that's hit the front pages more than any other in the last 8 months it’s probably harassment. At a recent CIPD conference we asked delegates if they had stories to tell.

Tell me have you ever experienced bullying or harassment at work?

Female: In the hospitality industry, I used to be a waitress, so maybe a little bit of harassment from the male chef towards women.

Male: Not personally no.

Female: Yes, yes I've experienced it myself and also I've seen it happen to another HR colleague.

Males: I have and it’s difficult sometimes because you feel very secluded, you've got no one to talk to.

Female: I've heard some horrific stories.

PL: Have you, what sort of things?

Female: Interestingly in my experience it’s mainly staff using procedures and policies such as grievance procedures to bully managers.

PL: Really now that's a thing you don't hear much about.

Female: Absolutely.

Male: Yes I did.

PL: In what way? My first boss was very authoritarian, ruled by fear and that resulted in about eight or nine of his staff leaving in a very short period of time.

PL: How did the organisation help or did they help?

Male: No they didn’t. They moved him sideways to a different department.

PL: Do you feel if you search your conscience that you might ever have yourself made someone feel bullied or harassed?

Male: That's a good question. Not knowingly but I might have done.

Female: Myself I haven’t ever.

PL: It’s hard to know where the boundaries are sometimes isn’t it?

Male: Absolutely it is and I think sometimes you ask expectations of people that maybe you think you could do yourself but then they say, ‘I haven’t got the skills or capabilities for doing that,’ and sometimes you maybe do step beyond where you should be in trying to get them to achieve what you want to do.

PL: The conciliation service ACAS provides free and impartial information and advice to employers and employees on all aspects of the workplace including harassment.

Julie Dennis: So I'm Julie Dennis and I'm the head of diversity and inclusion at ACAS.

PL: There are various challenges for HR here but perhaps the biggest is to create a culture where people feel they can come forward to tell HR or a line manager what's going on. But how should HR do that? JD: There's a variety of ways that organisations can. I think the first steps that we would encourage from ACAS is having a policy in place that clearly sets out to all of your people – this is how we expect you to behave at work. And if people do not behave in that way or you feel that your colleagues are not living up to that behaviour these are the steps you can take to raise a complaint, be that informally or formally. But I think there's a bit of caution that comes along with having a policy, a lot of organisations think that having a policy that's it, that's job done and actually a policy is only any good if you’re making people aware of it. So having adequate training in place.

PL: And obviously as you say having a policy is one thing, organisations acting on their policy is another and many seem to have found it difficult to do so when it comes down to it. I wanted to ask you about transparency because obviously organisations, Google and the rest, have been criticised for dealing with these issues behind closed doors, there's a case for openness in the sense that other people may be encouraged to come forward; if disputes and complaints are talked about and discussed; there's an issue of fairness around do you want to talk about these things until there's evidence, how can organisations deal with that issue of how transparent to be when a complaint comes forward?

JD: Transparency I think is a really difficult one. I think we’ve all seen in the press people who've been accused of improper behaviour, have had trial by the media and we’ve seen that sometimes that's been a positive thing because it has made people come forward and speak out but on some occasions it’s been a very negative thing where people have been subjected to false allegations and have their careers left in tatters.

PL: So what should the policy be? What should organisations do?

JD: We would advise that you should investigate, take all complaints seriously and investigate those, depending on the seriousness. Yes try and do what the complainant would like you to do. Ask them first of all what steps would you like us to take but obviously there may be occasions where actually as an organisation you may say, 'I understand you don't want us to take this any further but actually because of the seriousness of those allegations we have a duty of care to you and we need to investigate that. But whilst we investigate that we will look after you. We’ll point you in the direction of support services, counselling etc.' But good employers should also put that provision in place for the people who are accused of harassment and bullying because again it’s an allegation to begin with. So that person may not have done that or actually may not be aware that their behaviour is not acceptable. Most people that we deal with in ACAS when they’re actually confronted about their behaviour they’re normally mortified that what they’ve done has had such an impact on somebody and the first thing they want to do is just say sorry and for some situations that's enough, just for someone to say sorry. It's only when we've got really serious stuff that actually then we need to investigate that properly.

PL: Do you think most organisation actually have appropriately trained people to undertake the sort of investigations you’re talking about because it’s no one's day job is it and yet these are terribly sensitive and terribly important to the people involved?

JD: So there are some organisations out there where actually it is people’s day jobs, I know of some big employers out there...

PL: But for most it's not.

JD: ...for most of us it isn't and it's about actually equipping all managers to have those people skills on how to deal with investigations and having good guidance and policies in place. It’s also for HR professionals to support those managers that are undertaking investigations and be there throughout that process and let managers know that support is available because you could go on a training course but then not have to do an investigation for a number of years.

PL: So that's a little bit about the kind of role of HR professional in these situations, what about the role of line managers?

JD: I think in terms of line managers they need to again investigate any complaint promptly and quickly and take it seriously. Employees don't normally raise complaints if something’s not happened. Very few people that like to cause a bit of trouble because someone’s upset them. Also managers need to undertake that investigation and be independent so if they’re not the right person to do that investigation – they may be the deciding manager on a grievance case – they may want to appoint somebody else to undertake that investigation.

PL: And what about responses to cases where it evidently is the case that something has happened that shouldn't have happened, how should organisations respond? Is there a case for leniency? Should it be zero tolerance? What should it be?

JD: We would always promote zero tolerance. Legislation makes it very clear, especially if we are looking at cases that are in breach of the Equality Act for example, so we know that there are protected characteristics where it is a breach of the Equality Act, so you are leaving yourself exposed to further legal action if you don't deal with those cases.

PL: And more and more sectors are coming under scrutiny here aren’t they – science and medicine? Particularly at the moment in the last few months we’ve seen a lot of stories in the news about that, how do you see this playing out? I suppose the #Me Too movement obviously has put some energy behind it but it was coming before, where’s it going?

JD: I think we’re seeing a sea of change happening. I've been working as a D&I professional for nearly 20 years and I think it feels different this time. I think as a society we’re starting to see that if we stand up and speak out then we can stop this behaviour.

PL: Non-disclosure agreements are a big issue in this debate, when we raised them with delegates at the CIPD conference one woman told us about her own experience.

Female: I left my last place of employment and was bullied quite significantly there by my line manager. With the support of my union rep I managed to negotiate a package which meant we didn’t have to go to court but I settled with them out of court.

PL: Interesting, did they make you sign a non-disclosure agreement?

Female: Yes they did, yes.

PL: What do you think about that?

Female: I think it’s appalling, really I was treated really appallingly but at the time I was in a difficult situation personally, I was going through a divorce and I didn’t have the time, energy or finances to take time off work and fight them so I just took what they offered me and signed the non-disclosure agreement and left.

PL: That's not an unusual story and last year Prime Minister, Theresa May, said it was clear some employers were using NDAs unethically. Then in November the Women and Equalities Select Committee launched an enquiry into the use of NDAs in discrimination cases. For Ben Willmott, head of public policy at the CIPD, the run up to Christmas suddenly became very busy indeed.

Ben Willmott: The Women and Equalities Select Committee launched a call for evidence around the use of NDAs in relation to harassment and discrimination cases in the workplace.

PL: So CIPD jumped into action, pulled together practitioners and lawyers, expert members, and gathered up some views and handed them over to the Select Committee. What questions are the Committee asking or interrogating?

BW: Well the three main areas they were interested in were firstly should NDAs be banned for this type of use? Secondly if they were banned what impact would that have on individuals who might have relied on those types of agreements? And thirdly if you don't ban NDAs then what safeguards can you put on their use to make sure that they are used in a way that benefits victims or people who are being falsely accused for example. Our approach was to conduct a series of telephone interviews with some of our senior members working across different organisations and so members of the Public Policy Team conducted those interviews and together that helped bring our evidence-base together.

PL: And lawyers too?

BW: We had I think two or three employment lawyers who are CIPD members who fed into that process as well.

PL: So they all stepped up just before Christmas and gave you their opinion?

BW: Absolutely and I think this again highlights how important member engagement is for CIPD in terms of influencing the public policy debate. The sorts of insights that these senior practitioners give to policymakers is gold dust and so we’re incredibly grateful to any of our members who give their time to provide that sort of insight for us.

PL: But there was a lot of disagreement about NDAs.

BW: Yes so we had a split and we had probably a slight majority who are in favour of the responsible use of NDAs when use is part of a settlement or compromise agreement when someone is exiting the business.

PL: What do they see as the pros?

BW: Well I think the pros, particularly in relation to issues around sexual harassment or discrimination that quite often it’s one person’s word against another and so these individuals quite often are quite nervous or scared of having their version of events forensically taken apart, particularly if they go to court when there is no objective evidence for them to refer to so it literally is one person's word against another.

PL: A real ordeal.

BW: Yeah absolutely. And so I think in those circumstances the feeling was that if people who are victims or that the evidence in the round suggests that their version is one that does carry a very persuasive weight behind it then for them being able to have some acknowledgement that they have been treated poorly, to have some financial compensation and being able to leave the organisation and move on, is the right thing for them.

PL: And presumably they also take the view that some of these victims just won't come forward and won't stay the course if they feel they have to be publicly questioned about it and so perpetrators will actually get off scot free.

BW: Well and that was exactly the other point that actually by seeking to do the ethical thing by banning NDAs you're actually doing the opposite of what you want, you're actually stopping people from having a legitimate exit and ability to have some form of recompense and acknowledgement and leave these issues behind them. And so actually that might mean we have more hidden issues around sexual harassment, bullying or discrimination in the workplace. So that was definitely one perspective. The other perspective is practitioners, you've got some practitioners said in 30 years of working in different organisations I've never seen the use of a NDA in a way that has benefited the victim or the alleged victim. PL: Right because there certainly are some strong voices that think it should be zero tolerance, that they should be banned.

BW: Yeah absolutely and I mean I suppose from a really hard ethical perspective you could see the logic behind that but I think the reality of the workplace is sometimes quite messy and I think that we need to make sure that we don't ultimately disadvantage victims. Another perspective came out was that NDAs can also be useful for individuals who are subject to false allegations in this area as well.

PL: Yes when we talked to ACAS they highlighted that issue too that the other side of these disagreements or disputes is not to be forgotten.

BW: No absolutely.

PL: And that people who have been accused of these behaviours need to be thought of too.

BW: And so we really do have some quite conflicting views on this.

PL: The debate about the use of NDAs looks set to be a fierce one, Ben Willmott and his team fed back that wide range of views about how they might be changed, regulated or even scrapped to the Women and Equalities Committee. That was before Christmas, now they’re busy preparing for the next stage. So we’re recording this in January, what’s happening next is that you’re pulling together a roundtable of experts to sit down in a room and chew this over.

Yeah I really want to understand how we can reconcile these polarised opinions, what is the correct balance, and understand what the CIPD perspective on this really should be. We will be giving evidence to the Women and Equalities Select Committee at the beginning of March so we’re making sure that we've got that new data to make sure that when we go in front of the committee we do have a very solid line on this.

PL: We don't know what the future of NDAs will be yet but right now if there is an NDA one thing is clear HR still has a vital role to play.

JD: I think what’s gone wrong with NDAs is that those organisations think that once they’ve signed that, that's job done, instead of actually then having a conversation with that individual and making it clear that their behaviour’s not acceptable, because they’ve done an NDA so obviously there's something they're not wanting to get out. So actually I think HR have a really clear role, do they put that person on training, do they give them some awareness or do they start having those conversations around actually you do need to modify your behaviour because this cannot carry on, regardless of how good you are in this organisation.

PL: Yes or how valuable because obviously it tends to be more senior people that these NDAs are written around.

JD: But it can be quite a difficult conversation and I recognise that there are HR professionals out there, especially in smaller organisations where that would be a very difficult conversation to have. So although the textbook answer or in the real world is try and tackle it, it’s also very difficult for some of our colleagues out there to deal with that.

PL: This debate is everywhere now so have we reached a tipping point?

BW: I think the debate is really healthy. I think because it really does get to grips with the reality of these sorts of very, very difficult issues around the employment relationship, harassment, bullying and discrimination in the workplace, particularly when it's one person’s word against the other, and so I think it’s really useful for employers, HR practitioners, to understand what does good look like in this area? What are the areas that they need to be wary of? And that's why CIPD is going to be producing its updated guidance around these sorts of issues to provide a bit more clarity on what is good practice.

PL: That's all for this month but needless to say we'll be watching this one closely so listen out for updates as that consultation moves forward. You can see the CIPD's submission to the Women and Equalities Select Committee on the CIPD site. Next month we’ll be looking at the future of flexible working. Who will be asking for it and what will it look like? Thanks for listening.

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