We asked our Head of Success, Kelsey Paske, some questions about how Culture Shift supports our partners to effectively prevent and respond to harassment. This is something that all organisations are required to do, by law, as set out in the EHRC (Equality and Human Rights Commission) technical guidance on sexual harassment and harassment at work – so make sure you take note and act now.
Kelsey, you joined us from UCL (University College London), where you were previously a client of Culture Shift, what are some of the learnings from this time you can share with us?
I was the Behaviour and Culture Change Manager at UCL for two years. It was my responsibility to oversee the university strategy to prevent bullying, harassment and sexual misconduct.
This work is challenging, and it often requires uncovering experiences that people don’t want to talk about either because as a victim it is traumatising or there is a lack of acknowledgement from the organisation that harassment happens, and they would prefer to ignore it. However, we know that all organisations are impacted by unacceptable behaviour. It is not an issue of ‘having a problem’ it’s an issue of accepting that and developing a clear plan to address it.
One of my proudest achievements during my time at UCL was launching the reporting tool from Culture Shift and using the insight in a proactive way. This allowed us to develop processes like environmental investigations and improve transparency of reporting rates through annual reports. I was also really proud of the policy change where we introduced a risk assessment process, balanced notifying the complainant of the outcome with data protection, and prohibited staff student relationships where there is direct supervision.
The university also took a bold and necessary step that as a matter of course, non-disclosure agreements would not be used in relation to harassment cases. However, there was recognition that they may still be required e.g. if the reporting party specifically requests them.
So, now that you’ve joined Culture Shift, what experience do you and the rest of the team have in relation to EHRC’s technical guidance?
Businesses can be held vicariously liable under the Equality Act for acts of harassment committed by employees. Our system and services are designed with prevention and early intervention in mind. We believe that if employees are empowered to speak out issues can be tackled before they escalate to a formal process. Working in this way means that employers can demonstrate they are taking reasonable steps to prevent the act of harassment taking place (especially where there is knowledge or suspicion).
Our software allows your organisation to be informed about incidents and monitor trends. This means you can take a proactive approach to resolving incidents, or take necessary formal action where appropriate. We empower our partners to engage in effective prevention, informal and formal resolutions of reports and ensure that there are clear behavioural expectations, communications and effective policies in place. This adheres to the requirement to prevent incidents of harassment under the Equality Act, but also prevents the likelihood of whistleblowing offences or Section 23 agreements.
Our approach is about promoting safety, inclusion and respect within workplaces, but also reducing the financial, reputational and legal risks associated with harassment.
We have policies about harassment in place, is that enough?
In short, no. Policies are great for conveying behavioural expectations and clarity, and outlining the informal and formal options for resolution. However, the implementation of the policies is just as critical as the drafting. Organisations should consider how they communicate and train staff on policy changes to ensure effective and consistent implementation. Policies are a form of tertiary prevention, but they alone do not reduce poor behaviour, protect staff or an organisation.
We’ve heard we can be liable as a business if we can’t prove we’ve taken steps to protect our people from harassment, is that true?
Yes. Under the Equality Act 2010 Act Section 109 employers can be held vicariously liable for acts of harassment committed by employees. In order to mount a defence to vicarious liability, employers must demonstrate they have taken reasonable steps to prevent the incidents of harassment. How well an organisation responds once they are aware of the incident is not the obligation, the focus is on prevention.
Case law has demonstrated that having a policy is not enough to meet the test (Al-Azzawi v Haringey Council) (Peden v Specialist Photoprinters). And that having training is not enough. It requires a number of interventions and should be informed by your organisational context.
What is a Section 23 agreement, and how can we avoid having to sign one?
Section 23 is an enforcement agreement between an organisation and the EHRC. Specifically, it is a legal agreement not to commit an unlawful act. Section 23’s can be burdensome for organisations, but also lead to negative exposure about workplace culture. It is in the best interests of organisations to address issues proactively, rather than enforcing Section 23.
Section 23’s have been used in cases involving workplace harassment, such as Sainsburys and Highways England. The agreement can stipulate a number of actions the employer needs to undertake, for example:
- implementing a new respect at work training
- mandatory e-learning or training
- revising escalation and risk management procedures
Workplaces can avoid these when they have clear behavioural expectations, inclusive cultures, trusted and accessible support, promote a speak up culture and have clear processes for raising concerns and resolution. This is what we work with our partners to achieve.
How can we prevent whistleblowing cases?
The same way you avoid vicarious liability complaints and Section 23 agreements: through prevention of unacceptable behaviour. This requires workplaces to view positive and inclusive work cultures as business critical. Often in practice organisations take a deficit model approach to addressing bullying and harassment e.g. introducing a whistleblowing platform or having policies. Examining this work through primary prevention frameworks empowers organisations to examine the entire system and enables a more strategic approach.
What if someone makes a vexatious report?
Culture Shift acknowledges that within any reporting system or process, there may be the risk that some use the system to make malicious, false or misleading reports. However, we also acknowledge that the risk of such reports are low.
We recommend that employees understand how to bring a formal complaint, and that there is a clear process in place to determine whether or not there is a case to answer. If there is such, an investigation should determine whether or not a complaint is malicious, false, or misleading, as it may identify a cultural challenge that needs to be addressed rather than individual disciplinary action.
We encourage our partners to ensure that any internal policy accounts for malicious, false or misleading reports (generally these are covered in the gross misconduct section of an employment contract) and that disciplinary action should be taken against those found to engage in false or misleading reports.
However, we strongly advise our partners that they do not develop case management processes or policies based on this low risk, but rather account for it within existing risk assessment or register frameworks.
What if we receive lots of anonymous reports and can’t do anything about them?
The short answer is you can do something about anonymous reports. This is why our prevention approach is so critical. Anonymous reports provide organisations with valuable insights about what is happening to staff and identifies poor culture. Our system has been designed to enable organisations to take proactive action and intervention to prevent incidents of bullying and harassment, and we explore what this looks like for each of our partners.
