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A legal perspective of toxic culture

Makbool Javaid, Employment Lawyer - Simons Muirhead Burton

There can be few observers who are not disturbed by the allegations of sexual misconduct and bullying made against the Confederation of Business Industry (CBI). The catastrophic consequences of a failure to investigate until it was too late, have led to 50 leading firms cutting or suspending ties with the business lobby group, disengagement by the Government and resignation of it’s Director General.

There is also a police investigation and critical comment in the media. The impact of these revelations has been so significant that as part of its survival response, the CBI has appointed a new leader, announced that there will be a complete rebrand and an organisational culture change programme. In short, the CBI will no longer exist. This scandal was followed by another involving the government itself with the resignation of Dominic Raab as Justice Secretary and Deputy Prime Minister, after an independent barrister’s enquiry found that he had bullied civil servants.

The principle that employers are duty bound to protect the health and safety (including welfare), of employees is a long-established common-law rule. The law dictates that when the harm flows from the conduct of other workers, an employer is vicariously liable for such behaviour if it arises in the course of their employment. The courts have interpreted this broadly so that any connection with work, even if outside of the office building, is caught.

The Equality Act 2010 outlaws bullying, or harassment linked to a protected characteristic as well as introducing a more objective assessment of acceptable conduct to strike a balance between overly sensitive victims and rogue justifications for bad behaviour. The Protection from Harassment Act 1997 has both a civil and criminal purview and applies in the workplace as well as dealing with stalking. The courts have ruled that conduct must cross the boundary between unattractive, and even unreasonable, and conduct which is oppressive and unacceptable. The gravity must be of a level which would sustain criminal liability.

There are few businesses that are not familiar with the legal framework, or the plethora of codes and guidance issued by both ACAS and the Equality and Human Rights Commission. It is reasonable to assume that both the CBI and the civil service incorporated the legal obligations into internal policies and procedures. It is therefore pointless to set out the law in yet another article.

In my experience as an employment lawyer incidents of bullying and harassment can rarely be blamed on the absence of policies or a lack of knowledge of the law. So how do we explain these high-profile cases and the legions of employers who end up facing claims.

Every employer should invest in a risk assessment framework and create ‘an early warning mechanism’ to identify potential risks. It is fundamental to establish trust and confidence in internal conflict resolution processes. The CBI case involved elements of victims feeling helpless with nowhere to turn and combined with a failure to escalate complaints to the appropriate levels within the organisation. Consequently, organisations can inadvertently create a ‘culture of fear’ in which inappropriate behaviour becomes the norm. In order to defeat this phenomenon any perception of a fear of retaliation, victim shaming, and window dressing must be banished from the workplace environment.

The mantra of a zero-tolerance culture cannot exist outside of effective practical, flexible, and speedy procedures which have the buy-in of all stakeholders and are championed by the most senior leaders. The procedures must be tailored to capture the dynamics of the organisation and not standard templates. Too often a one size fits all approach masks the existence of a looming disaster even if it ticks all the boxes.

I cannot emphasise enough the need for bold and innovative strategies that reflect the expectations of staff, the relevant sector, and wider stakeholders. This requires the HR function to persuade business leaders to make a significant investment in preventative measures. It appears that internal conflict resolution is not given priority and is deemed low risk, when as the CBI has discovered, the opposite is true. What is the point in having an illusory employee support scheme which deals with the symptoms rather than the root causes. The list of creative solutions is too long for this brief article but apart from mandatory training, employers should seriously consider anonymous helplines, specialist HR and mediation teams. The most progressive organisations make use of every individual in the battle against inappropriate behaviour by rolling out an ‘active bystander’ programme so that the entire workforce is enlisted to ensure that everyone is treated with dignity, respect, and tolerance.

Perhaps the importance of this topic is reflected by the fact that the UK government is supporting the Worker Protection (Amendment of Equality Act 2010) Bill, which seeks to impose a proactive duty on employers to take all reasonable steps to prevent the harassment of its employees, including by third parties, with a compensation uplift where they fail to do so.

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