What is the current best advice for any organisation wishing to protect itself from allegations of sexual harassment given the new environment post #MeToo and the Presidents Club dinner?
This is a question we are frequently being asked nowadays because it has become increasingly obvious that workplace culture will never be the same again following both these events. Indeed arguably we have witnessed a sea change every bit as big as has followed the introduction of new legislation to outlaw other forms of discrimination such as age, disability, religion or belief and sexual orientation. Many organisations have been caught out and individuals brought up in different times, similarly.
So here are ten ways that can help minimise your risk:-
You are likely to have these of course. But you should ensure that in light of recent events these are carefully reviewed, particularly if they are more than a year or two old. It does not look like you have moved with the times if your materials are where we were 5 years ago.
This should be for everyone. It should be examples based and should provide a “safe space” to encourage active participation by all. Here is the opportunity to expose misunderstandings and present how we have moved on with our thinking and culture. Employers should take great care as to how these are managed.
This is the job of the HR team and in general terms they could and should be far more pro-active than previously. Act promptly whenever there are tell-tale signs. No more may blind eyes be turned. Whispering about miscreants, for example, and a number of issues being raised in particular areas or departments, are clear warning signs…
Do this really carefully, but do not shirk the challenge. Think about bringing in external advisers if you feel this is appropriate. They can assist with your Investigation or run it for you. The latter is becoming increasingly common these days.
Where it is appropriate procede by way of disciplinary process in accordance with your Disciplinary Procedure and having regard to the Acas Code of Practice and Advisory Guide. But in some situations other options should be considered as well – such as workplace or external mediation for example. Find out what the person who has made a complaint or raised an issue actually wants? Not in every case is disciplinary the only or best course. Sometimes what is being looked for is simply for the action to stop. This may be achieved in a less disruptive way by, for example, bringing into a room the person said to have transgressed or been guilty of misconduct and be made to appreciate the consequences of his/her activities. On other occasions the person making the complaint may not want any sort of process at all, but for the good of the organisation, for the protection of your other employees and to reflect the new environment, that may not be possible or realistic. Real sensitivity is required here.
Remember the duties you owe to all your employees. These include those accused of discriminatory behaviour or harassment. This is often overlooked and can lead to difficult consequences for the person who is the subject of the accusation, but also for the employer and possibly by extension the victim.
If you operate in a regulatory environment you will need to think very carefully about your responsibilities to report. Regulators such as the FCA and the SRA have stepped up their vigilance in this area and have very much toughened up on the regulatory environment in which you will operate. As a result your duties will have been spelled out more closely than before, and you will need to ensure you comply. This is particularly the case in the financial services and legal sectors, for example, but applies in most other sectors as well.
Do you have need of some expertise in this area given the potential consequences if matters become public. Given the current sensitivity around these matters, this will need to be carefully managed.
Settlements and Non Disclosure Agreements (NDAs)
At some stage in the process it can become apparent that it is in all parties interests for the matter to be dealt with by way of settlement and for the parties to agree to keep confidential what took (or may have taken) place, in return for a monetary payment of some kind, amongst other terms. Despite all of the attention now being focused on NDAs or (as they are often called in the UK) Confidentiality Agreements, do remember they are not outlawed at the current time. Certainly they cannot be forced upon an employee using improper pressure. Nor can they ban or seek to mislead an employee into thinking they will be banned from reporting to the Police or their Regulator or speaking to their lawyer, doctor or other medical practitioner or counsellor in a confidential environment. Nor can they stop an employee “blowing the whistle” in a legal sense. Lawyers when advising on these agreements must have in mind the public interest, and in particular the public interest in the administration of justice, as well as the interests of their client. Contrary to some views being expressed at the moment, these agreements are not banned and in appropriate circumstances they can still be used, sometimes not only for the benefit of the employer, but also for the person bringing the complaint too. An employer can even enforce these agreements by seeking an injunction from the Court, although this is undoubtedly something that would need to be handled extremely carefully and should only be considered in certain circumstances.
And in the aftermath – Think where you may have gone wrong or at least what might have been managed better? Could you, for example, have done with a well considered and balanced personal relationship policy? Might you have made use of a third-party (internal or external) whistleblowing network to encourage people to come forward. Might this have averted the problem before it became one?
Sexual misconduct in the workplace is undoubtedly one of the most challenging areas for HR practitioners, not least because the current environment is not what we have been used to. But allowing things to continue as they may have been in the past is just not going to work. It is important for all to adapt to absorb the lessons of the past and embrace the new culture for the future.