Fostering a Dignity & Respect Culture & Potential Risks of Not Achieving SamePosted in : Webinar Recordings on 26 September 2019
Caroline McEnery discusses the importance of having a company policy on dignity and respect, early interventions, the definition of bullying, the importance of a grievance procedure, the key principles applied to the disciplinary and investigation procedure, what creates a negative workplace and building a collaborative team.
Topics covered include:
- Importance of a Dignity and Respect Policy
- Policy Considerations – Defining What Is Not Bullying
- Managing Bullying and Harassment – Early Intervention
- Dealing with Complaints – Informing the Alleged Perpetrator
- Dealing with Complaints – Cross-Examination of Witnesses
- Dealing with Complaints – Providing Training to Managers
- Dealing with Complaints – Requests for Anonymity by Witnesses
Caroline is Managing Director of The HR Suite, a WRC Adjudicator and a former member of the Low Pay Commission.
Note: our eLearning team are currently developing a brand-new Diversity and Inclusion in the Irish Workplace course. If you'd like a sneak peek before it's launched, email Debbie Wilson via email@example.com and we'll ensure you're amongst the first to see it.
Transcript (slightly edited for readability)
Scott: Hello everyone. We’re going to start the webinar with a quick poll:
"Have you or others in your organisation had to investigate allegations of bullying or harassment in the last year?"
About 30% of the people listening to us currently have had to investigate some kind of allegation of bullying or harassment.
There are quite a lot of employers out there having to deal with this, so this is a big subject. We're going to be looking at dignity and respect.
Why is it important and what kind of details and issues should the policy cover?
Caroline: So good afternoon, everybody. Delighted to be here. I suppose this is a very topical area because no matter what size the organisation is, generally, when you have employees and you have people, there is a chance that there will be some form of either interpersonal conflict or breaches of dignity and respect at work.
So I suppose it's really important we have a policy in relation to dignity and respect at work because under the Health and Safety Legislation, there's a legal obligation to ensure that we cover the whole area of bullying, harassment, and sexual harassment, and proactively kind of manage how we're going to ensure that we prevent these incidents occurring in the workplace in relation to the duty of care we have to employees, but also to ensure that if any issue occurs, we're very clear on what the employee can do in relation to pursuing a grievance, etc.
I suppose the other really important element of the policy is to highlight to everybody in the organisation what's not okay and the very serious nature the employer will view any breaches of this policy.
And I suppose, for me, it's not enough that we just have a policy. It's really important that we bring the policy to life within the organisation. And ways we can do that is to ensure that it's in the staff handbook, it's part of the induction training that's done, and proper training associated with that.
I know you have eLearning available in relation to this area as well. It's really important that the organisation shows it has taken proactive measures in relation to dignity and respect, rather than just saying, "We ticked the box because we have a policy in place".
So I would definitely encourage making sure your policy is tailored to suit your organisation also. So, for example, if you're in the hospitality industry, what might be typical breaches that occur in your industry might be very different to those that might occur in an IT company, for example.
So when you're demonstrating examples in your policy of what's not acceptable, for example, in relation to bullying, harassment, and sexual harassment, I think the more you bring it to life by giving actual examples, the better it is. And as I say, reinforcing that with training, reinforcing that with cultural events around that.
And I suppose one of the initiatives we've done this year is a little e-book called "Celebration You", which is a free e-book. It's a children's book, but it's associated with the whole idea of celebrating difference. And again, it's culturally to bring that to life. So, if anybody would like to go on our website, the hrsuite.com, they can download that.
So initiatives that go beyond just a policy to bring the culture of dignity and respect to life are what we would really recommend.
Scott: Yeah. I suppose one of the things that is often missing, which isn't missing in Legal Island's policy, by the way, is what is not bullying? So we would cover things such as, "This is good management. We deem these day-to-day meetings, exploring issues, looking at not hitting targets, all of those things are, as far as we're concerned, good management. You need to have those discussions".
But quite a lot of those policies might not do that, and you can have almost an imbalance, I think, there where all you're talking about is, "This is what you can't do". Managers, employers generally just want to know, "What can I do?"
Caroline: Absolutely. And I suppose people use the word bullying or harassment or, "I'm stressed because of the fact your performance managing me", very loosely. And the good thing about the legislation is it's very clear in terms of what is acceptable behaviour and what isn't.
So let's talk about bullying as an example of that. So the legislation is very clear that repeated inappropriate behaviour is defined as bullying. So one incident on its own doesn't constitute bullying. It might constitute inappropriate behaviour, but it doesn't necessarily constitute bullying.
The second thing the legislation is clear about is that the manager has to manage and has to have the freedom to manage. But that needs to be done in a professional and respectful way.
I suppose I often find that managers who progress in an organisation . . . so they might have been a brilliant accountant, a brilliant engineer, a brilliant software developer, and as they progress in the organisation, the more senior they get, the more people they have reporting to them, and they've never been trained on people management skills. Everything about giving feedback, for example, or performance management is absolutely alien to them. And they feel how they do that is maybe making sure they're very firm and they might overstep the mark of what is acceptable as a result of that.
So I think it's very important we train our managers on how to give feedback, how to be proactive, and to understand the boundaries. Because giving feedback and performance management is never deemed to be bullying once it is done professionally and in line with dignity and respect. However, that boundary can be easily blurred by a manager who isn't trained in relation to how to do that.
And I think we have a big responsibility to managers that have the responsibility of people management to up-skill them, because, again, the more senior they get, the higher percentage of their job involves managing people, rather than doing maybe the day job they've spent years getting experience and training in college for, etc.
So I suppose, again, this comes back to the overarching point around this topic of dignity and respect. It's how you foster that culture of what's okay and what's not okay. The more training, the more communication, and the more discussion you have around this, the more it becomes the acceptable norm and the employee will know, "Okay, performance management isn't bullying". And also, the manager will know the boundaries of what they can do around performance management to not get themselves in hot water.
At the end of the day, each and every manager in the organisation is an ambassador for the company. If the employee ends up taking a claim, it isn't against the manager. Ultimately, it's back to the vicarious liability that the employer has to be able to say, "Okay, I've trained the manager to have the requisite skills to ensure that duty of care we had in relation to dignity and respect and a relation to ensuring a safe work environment is upheld".
Scott: Yeah. You have no real protection if you haven't done the training, so you're going to find yourself liable as an employer.
Caroline: Absolutely. And there's lots of scary, scary examples in case law that when we all read them, we actually say, "Oh my God, how is that possible that that actually happened in current-day work environments?" But unfortunately, those examples still exist.
And people sometimes make the caveat of, "Look, that's Johnny. Johnny is the manager for 25 years. We're not going to change him now". What's acceptable now in terms of the benchmark of what employees will accept as unacceptable behaviour, they just won't accept it.
I think the #MeToo Movement put a very big spotlight on maybe what was condoned to a certain extent as unacceptable behaviour to now say, "Well, actually, we're not going to".
Now, obviously, the majority of our organisations are very proactive because they know they won't retain or attract great staff if they don't ensure positive cultural dignity and respect is in place.
Scott: So we're going to move on to the next section, which is early intervention. It's all very well having your policies and having those things in place and almost having a culture of dealing with things. But it's fairly important that you get there early, I think anyway, before positions become entrenched.
So how early is too soon? And sometimes it might be better just to leave things alone. They'll solve themselves if you ignore it, but it's not a wise pause.
Caroline: I think it depends on what the issue is. So we're talking about dignity and respect. And for example, if we see one act of harassment, that requires immediate intervention. So, if there's inappropriate behaviour to do with somebody's nationality or name calling or anything, using that as an example, one incident is too many.
And as colleagues and as managers, again, there needs to be a culture police, as I call it, in place to say, "That's not okay around here", and that needs to be immediately addressed. And that can be a sidebar with the person who might have made the comment, etc., to say, "Listen, Johnny, maybe you didn't realise that what you said is highly inappropriate and is unacceptable here", and deal with it as a sidebar conversation if the other employee hasn't come to you to take it further, etc.
But I suppose early intervention needs to be the responsibility of everybody. And ultimately, we can't just rest that with the person. For example, the person who has been talked about, etc. We need to make sure that everybody has that shared responsibility of nipping things in the bud.
The second thing then is, as managers, you'll often get people coming to you and they'll say to you, "Look, I want to have an off-the-record conversation with you. I'm really not getting on with my supervisor". And you could be the supervisor's manager. "And I feel the way they talk to me is really inappropriate. I feel I'm being harassed or I feel I'm being bullied". Again, remember, people use these words loosely without being clear in relation to the definition.
I always say to people when they come to me or when I'm advising people, "There's no such thing as an off-the-record". Somebody can't say, "I'm coming to you in confidence". Honestly, when somebody mentions that, I'd stop them straightaway to say, "Look, I'll stop you there. It depends on what you're going to tell me in relation to the responsibility I have about what I'll do next".
Because some people feel that when they come to you and tell you about the supervisor and the issue, they expect you're going to do something about it. And you're not able to do something about it without saying something to the other person.
Oftentimes you'll see employees they'll come and they'll say, "Look, I want to be moved to another department. I don't want to be managed by that supervisor, but I don't want you to tell the supervisor". That's an unreasonable request. And also, you're not giving the fair process and rules of natural justice to the person the allegation is being made about.
And I think what's really important with allegations is we want to nip everything in the bud proactively, but we need to ensure that we're clear that . . .
And as HR professionals, 30% have been involved in investigations based on your poll today, we know that there's two sides to every story. And sometimes when you hear version A, it can be chalk and cheese removed from version B. So you always have to . . . rather than getting involved.
Sometimes managers, when they're told half a story, they really get on board with that half the story, and all of a sudden, they're moving somebody or doing something, when in effect . . . my advice is they should be pressing pause and instead they should be saying, "Look, the options available to you are . . ." and teasing true with that employee and signposting them to identify what is it that they want to do with their grievance.
Scott: Yeah. It may be that they haven't actually spoken to the manager, so the manager doesn't know that they're acting seemingly inappropriately. Or it may be just be a difference of opinion over strong management or setting targets. They don't know the pressure the manager is under. And most grievance procedures, anyway, we would normally say you raise it with the person you're concerned with first. So there are some things just pushing back and maybe trying to get some reality to this situation.
Caroline: Absolutely. And a lot of the time, I think it's untangling the person, too, and helping them on understand the rule they have in this, which is it is their grievance. They've got to decide how they want it dealt with.
Obviously, as I said, the difference is most policies will have informal, they'll have mediation, and they'll have the formal investigation process. I suppose we always want to address it at the lowest possible level where that is feasible. And we know that's not always possible. But sometimes the person just needs to vent. Actually, it could be them that's offside and they just need a listening ear. I think it's crucially important that we always ensure that if somebody says, "I need to talk to you about an issue", we give it the time.
I'd also say in HR we always say "the paper trail". If you don't put it in writing, it never happened. So the importance of dropping an email back to that employee afterwards to say, "Thanks very much, Scott, for popping in. You said you don't want me to do anything in relation to the grievance that you have at the moment, but come back to me at any stage if that changes".
Because sometimes people in a couple of months when the manager continues performance managing that person, using that as the scenario, they come back and they say, "Well, look, I told you that I was being bullied by this person and you've done nothing about it".
So just make sure that that can't be perceived as you're doing nothing about it when you're in effect passing the baton back over to that person to say, "Here you go. Decide what you want to do and then come back to me".
I suppose the great thing about informal and the great thing about mediation is it resolves it without bullying being apportioned. It resolves it in a way that the parties can stay . . . because generally this is interpersonal. It's between two parties, especially associated with dignity and respect. And the relationship between the employees after the incident is over is really important because you need them to work professionally together. When it gets to investigation, somebody is right, somebody is wrong. Put into disciplinary action could incur.
Scott: And somebody else makes a decision, which is an important thing. So if you can get it early, you allow the parties to reach an agreement on how they're going to behave with one another. But you send it up the chain to the senior management, or wherever it goes, separate board of appeal, you end up with . . . and the employee who is complaining about the bullying loses control. And the manager has lost control as well. So it doesn't make an awful lot of sense, anything but the more serious cases, to send them up the line.
Caroline: And ultimately, we have to give the employee the option. But I think it's important at that initial stage that we're at least untangling those options to the employee. I find that a lot of employees don't even realise that when it gets to investigation and they put their statement in writing to outline what their grievance is, they don't realise that the other person will get to see that, witness statements are going to be shared, etc.
So even outlining, what does that really mean? A lot of the times, I find the employee just thinks you're going to move them or you're going to take corrective action without actually there being an innocent-until-proven-guilty approach, which is obviously required in line with rules of natural justice
Scott: We just had a question come through the chat box.
"At what point do you have to inform the alleged perpetrator of the issues being raised when the employee hasn't raised a formal complaint?"
Caroline: Brilliant question. I suppose, ultimately, if at the initial stages . . . we're all so conscious now of the GDPR and the paper trail. So even in the email I would send back to the employee, I wouldn't name the person they were talking about. And at that stage, to me, it's in the context of them getting clarity on what they want to do Meeting 1. So at that stage, I would be raising nothing.
What you find sometimes is, again, with inexperienced managers, etc., they basically might have an off-the-record meeting with the alleged person who has done the wrong and they say, "Look, just to give you the heads up, Scott has come to me and you better keep an eye out there because that could turn into something more". And the manager changes their behaviour and Scott realises that the person has actually been told. There, you're breaching every confidence and every rule ever.
HR people are not going to do that. They're going to know what managers may not know and they could be the ones who would get offside. So, to me, I would only be notifying the person when the person has said, "I want to go down the road of mediation". And obviously, we know mediation is a formal process. It's voluntary, confidential, impartial. I'm a big fan of mediation when it's interpersonal conflict. So when they confirm, "Yeah, I'd like to do the mediation if the other person is willing to do it as well", I'd notify at that stage in relation to mediation and in relation to the formal process. When I get the formal allegations, that's when I would notify.
Obviously, if it's a very serious sexual harassment incident . . . which we're coming into Christmas party seasons. One of our hot topics, which we might do a webinar about in our next one, actually, because every year it's one of the most topical things. But if, for example, an incident occurs that we all see or everybody is aware that this happened, and somebody is going to be suspended because of it, etc., obviously, the notification process kicks in immediately.
So we take them all on a case-by-case basis. But at informal stage, I would be very slow to inform, because for me, informal is you're guiding the person to go back and talk to the person themselves and you're better off staying out of it.
I suppose I don't believe that the HR person taking what the complainant said and bringing it to the subject of the complaint is ever helpful. Because what you said in terms of A, B, C, by the time you translate that, all of a sudden somebody comes back and says, "No, that's not exactly what I said". And it's the HR person that's offside. So I think you're better off . . .
Informal is the person going back talking to the person themselves. No problem there being a facilitated discussion, both the parties are having the communication. But be careful as to when you notify because what that could do is put petrol on the allegation and expedite it rather than what we're aiming to do, which is address it at the lowest possible level.
Scott: Yeah, it kind of kicks in here . . . we've got another question.
"Can the investigated employee demand to have the opportunity to cross-examine the employee in person, or are statements sufficient?"
And I suppose that's when you start going down that formal route, which you're trying to avoid, but just answer that question.
Caroline: Yeah. So when you get to the formal investigation, I would always outline in the terms of reference, at the very early stages, to everybody involved but particularly to the person who is making the complaint, what does the investigation look like? So, to explain, "You'll want to give me a statement. I'm going to be pushing your statement to all the parties. I'll be interviewing you. I'll be interviewing everybody else".
And to me, cross-examination is important depending on the allegation. So on occasions, I've had a vulnerable adult, for example, which I didn't feel it was appropriate for cross-examination to occur. So instead, I facilitated questions to be asked and put to the person and vice versa.
And I had another situation where it was a sexual harassment case, and again, I didn't see that was appropriate. And the subject of the complaint, I didn't feel it would have been fair on any of the parties. So, again, I facilitated the questions to be pushed and answers to be got.
Remember, in any investigation, it's very difficult to get it perfect, but you've got to make the best judgement in line with rules of natural justice and in line with what would a reasonable employer do. And I think if the person wants cross-examination, for example, and you feel it would be appropriate and beneficial to the investigation, fair enough to facilitate it. But if you feel that that's breaching the dignity and respect, you need to justify that.
And during the investigation and during the investigation report, which is the output of that, it's very important to outline how you considered the request and what your rationale was for either allowing or denying and how you remedied it in another way, if you can.
The challenging thing about dignity and respect and investigations in general are the variety that comes across any desk is so varied that you really have to consider it on a case-by-case basis. But in general terms, you need to make sure that the person who wants questions answered gets those questions answered and that there's no evidence left on the table, for want of a better word, that we haven't fully explored, so much so that at the end of an investigation meeting, I'll always ask, "Is there anything else you want to add?" to ensure that there is nothing that they feel they haven't had the opportunity to put forward that would sway the evidence.
Scott: And whether that's face to face or not, I suppose it depends. You have your constitutional right. There have been many cases of late to fair process. But you also have, I suppose, vicarious liability opportunities here, if you like. If you expose somebody who says that they've been sexually harassed, for instance, and you put the perpetrator in the room again and they start needling them again, then you're making it much worse.
So I suppose that's your point. You're weighing things up and saying, "Look, it's appropriate in this circumstance. It's not appropriate in that circumstance". But generally speaking, whether it's a grievance or a disciplinary issue, it would be normal so long as it's not going to get out of hand. And if you think it will get out of hand, you justify why you deviate from the norm, something along those lines.
Caroline: Yeah, I think that the bottom line is, as an investigator, you have an obligation to ensure that you've considered all the evidence that any party wants to put forward to you, because ultimately, that's the crux of fair process. So once you haven't in any way prevented that occurring, that's to me the most important thing.
And generally, the questions and the evidence that even cross-examination is about, it's your job to make sure that meetings are chaired correctly and appropriately. And if that doesn't occur, then you need to call a halt to it, because everything needs to be done in line with dignity and respect. No matter what the investigation is about, the appropriate and fair process needs to apply as an overarching responsibility.
Scott: Okay. We're listening to Caroline McEneryfrom The HR Suite. I'm Scott Alexander from Legal-Island. We're looking at dignity issues. We've moved on to a lot of the disciplinary and grievance issues and the procedures and so on.
Just one little follow-on question coming through the chat box here.
"Do you allow cross-examination only on request?"
I guess it may depend on the procedure, wouldn't it?
Caroline: Yeah, I suppose in my terms of reference I would always outline that cross-examination is possible during the investigation. What you don't want is to give the person who was making the complaint a false sense of expectation that that wouldn't happen. And then, obviously, it's your obligation during the process to decide if it applies or not.
So I would say it may apply depending on the circumstances or the evidence that's required, because I think that at least leaves it open for you to decide in terms of appropriateness. But I think it's important that the person making the complaint at least is aware that that is a possibility rather than giving them false expectation. If it's like what we said earlier on, make sure they understand cross-examination, witnesses will be involved, etc.
Remember, we always have to take it that everybody is innocent until proven guilty. And where that evidence can come from, we've no idea until we actually get involved. And now with CCTV and with recordings, emails, GDPR, access requests, etc., the evidence can be quite robust, and the evidence sometimes can be very swayed based on just the evidence. So it's in ways making our job easier as investigators because the weight of evidence now sometimes can be quite . . .
Scott: Obvious, almost.
Caroline: Yeah, absolutely.
Scott: Okay. We've got our last question there, and questions are flying in at the minute.
"Have you seen any feedback on cases on appropriate training provided to managers to conduct investigations? And where witnesses are involved, can they remain anonymous in order for us to uphold a complaint or must they be named?"
Maybe take the second one.
Caroline: So yeah, two questions there. Let's talk about both. I suppose ultimately the question around do they need to be trained, etc. . . . you remind me of the two questions now again as we go on . . .
Scott: The feedback, does it come out in the WRC findings or something? Would you pick it off as a WRC adjudicator?
Caroline: Yeah, training is, without doubt, something that comes up all the time because under vicarious liability, there is a requirement to show that you went . . .
Scott: Taken reasonable steps.
Caroline: And you went above and beyond having just a policy. Because a lot of people will . . . and you'll find that in the defence when people are saying, "I was bullied and harassed and I wasn't aware there was a policy". Sometimes you'll have fierce inappropriate behaviour in relation to language, name-calling, sexual harassment, etc. Saying the person got a policy in their handbook 11 years ago when they started isn't going to be your defence that you can rely on. So without doubt, the training, the culture, the communication, doing additional measures is very important, but particularly training.
Scott: And what about anonymity? You can't guarantee it?
Caroline: I would say no is the honest answer. If, for example, we're giving an anonymity, you've got to understand why are you doing that? The problem I have with that is it could mean that somebody . . . like, it has to be something that can be challenged. You can't give a statement from somebody to say, "I agree with Mary", and nobody had the opportunity to challenge, "Well, actually, that person is her best friend and that's why she's saying that", rather than it actually being objective evidence.
So I'm not in favour of anonymity. You'd want to have a very exceptional reason in my belief as to why. And I can't think of any right now, to be honest. I think you'd have to make sure . . . different in terms of whistle-blowing, etc., or different in relation to something that might spark a complaint.
For example, somebody says, "I know somebody is stealing, but I don't want to be involved", and there are other ways that that can be identified or not. But in relation to a witness involved, I think you'd have to be very careful. Again, back to the rules of natural justice, you've got to make sure that that person is given fairness around that.
Scott: Okay. I'm afraid we're pretty much out of time. I don't know what happens. The questions are still coming in. If you want to send them on or you can send them on to Caroline or even myself, if you like. We might look at that. We're going to chat about Christmas parties in the next webinar. But these webinars only last half an hour. Maybe we should make them 45 minutes.
Caroline: Yeah. I can't believe that went actually that fast.
Scott: Send them in. We'll probably look at that. If there are issues that you'd like us to chat about in further webinars, then we can have a look at those as well.
You'll see that you've got in front of you there 25% off eLearning on Dignity and Inclusion and Unconscious Bias. So if you want to take that up, contact Debbie and use the code. We will send you details of that if not today, then tomorrow.
Our next webinar, I think, is at the beginning of December, but we'll be in touch with you all about that.
And you'll also see Caroline at the Annual Review of Employment Law 2019 conferences, which will be looking at what a good investigation report looks like and the whole process that you have to follow in order to come out with a good report.
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