How to protect your business from discrimination claims
There's a need to be proactive and address issues internally before they are addressed by employees externally
It seems that, each day, new allegations around unfair and detrimental treatment are made against senior figures, ranging from Weinstein to Green and a great deal in-between.
In July 2018, jobsite Monster.co.uk released the findings of its survey on sexual harassment in the workplace. It found high-profile movements fighting against sexual harassment, such as #MeToo and Time's Up, gave a quarter of UK workers the confidence to report sexual harassment they see or experience in the workplace. In the past year 31% of British workers reported experiencing or witnessing gender discrimination at work, and 21% said they had experienced or witnessed sexual harassment in the workplace.
This, added to the fact that the most recent employment tribunal statistics show that the number of single claims lodged increased by 165% compared with the same quarter last year, means these are significant issues employers need to be on top of. The power of social media cannot be underestimated as, in addition to the claims that may be brought, reputational damage can be caused in an instant. This has an effect on not only the business’ reputation, but also internal staff morale and productivity, recruitment and retention.
Forewarned is forearmed. Businesses need to audit themselves to understand if there have been claims or grievances raised in relation to particular issues or parts of the business and root these out. Check to see if there are records of any settlements involving harassment or discrimination complaints or terminations of employment on the grounds of discrimination or harassment. If so, review these and understand if there is any pattern or similar cause to them and address it. There is a need to be proactive and address these issues internally before they are addressed by employees themselves externally.
In keeping with the proactive approach, employers also need to foster an environment of respect. Consider the existing workplace culture and, if necessary, call out 'banter' and inappropriate behaviour. If this needs addressing in a formal way do not be afraid to invoke the workplace disciplinary procedures as necessary. Civility in the workplace must be encouraged and employers need to be transparent about how they will address areas of concern and not tolerate poor behaviour. This, in turn, should lead to staff feeling empowered, believing they can address issues and that they will be taken seriously.
To this end, businesses need to have effective and 'live' policies and procedures that staff are trained on and know exist for their use. Such policies and procedures alone are not enough, but they are a necessary starting point. There should be a whole suite of policies, not just anti-harassment and bullying but also a grievance policy, whistleblowing policy, code of conduct, ethics and compliance, equal opportunities, diversity and inclusion. These need to work in harmony, not just as standalone processes.
Prohibited behaviour should not be limited to unlawful discrimination/protected characteristics but go further and explain the importance of diversity and inclusion and treating people with respect. 'Stress test' policies – for example, is there a meaningful route for complaints to be made even in a small team? The policies also need to be applied during recruitment as well as during employment.
If allegations are made they need to be investigated and dealt with in a timely and thorough way. Consider if an external third party is needed so there is objectivity to the investigation. Detailed evidence will be needed so this should be recorded and reviewed as a part of the investigative process. Communicating with victims and alleged perpetrators throughout the process about the status of investigations and next steps is also crucial.
There can be severe consequences for getting it wrong. In the case of Sudra v Kash a 17-year-old schoolgirl at a Pizza Hut delivery branch won her claim for sexual harassment and the judge found “the investigation was entirely defective as it did not in fact address the points raised by the claimant nor did it provide any response to her complaints, there was some considerable delay over seven weeks in dealing with the grievance and a complete failure to acknowledge her appeal”. An extra 15% was added to the award because of the business’ handling of the claimant’s grievance.
Being proactive and transparent are the main takeaways to both protect the business and foster a productive detriment-free working environment.
Jonathan Maude is the chair of the UK/EU Employment Law Committee at international law firm Vedder Price's London office