French champagne maker Moet Hennessy is facing a £1.1 million tribunal claim from an employee alleging she was told she needed “anti-seduction” training as she was “gagging for it”.
MasterChef in the firing line: 45 allegations about the presenter Greg Wallace upheld, including claims relating to inappropriate sexual language and humour, an allegation that presenter John Torode used an extremely offensive racist term in the workplace was also upheld – both were sacked.
There’s no doubt workplace behaviour is back in the spotlight and a hot topic of conversation. But it’s not just the actions of individuals that are attracting attention; what businesses do (or should do) to prevent such incidents from occurring and how employers should deal with serious conduct issues in the workplace are also under scrutiny. This is not least from businesses themselves who want to protect their people, their organisation and their reputation.
So, what are some of the key practical steps to achieving this?
- Get the basics right when it comes to prevention
- Be aware of the additional duty to prevent sexual harassment
- Appropriately train employees
- Know how to spot and deal with a grievance
- Understand how to deal with a serious conduct issue
1. Get the basics right when it comes to prevention
It’s important to think about your company culture when it comes to prevention. You want to ensure there is a clear message about what sort of conduct is unacceptable, the seriousness with which it will be treated (such as harassment being included in the disciplinary policy as an example of gross misconduct) and that there is an atmosphere where employees feel confident and able to speak up if they are subject to or witness inappropriate behaviour. Early reporting and effective handling can often prevent matters from escalating and becoming a wider issue.
In the case of MasterChef’s Greg Wallace, the allegations spanned 19 years, with the production company stating that “escalation procedures were not as robust as they could have been” and the BBC saying that “more could and should have been done sooner”. This isn’t a position any business would want to find itself in.
As well as assessing whether any changes are needed to your company culture, also check whether you have the policies and procedures in place that you need to support your business and that they remain appropriate for you. For example, if your business has grown significantly, what worked for you when you were a smaller organisation may no longer be as effective, so changes may be necessary.
2. Be aware of the additional duty to prevent sexual harassment
Whilst many businesses will be aware of the specific duty to prevent sexual harassment that came into force last year, it’s important not to be complacent. Remember, this is an ongoing duty, so it’s important to ensure that your assessment and any steps you take remain appropriate. When times get busy, it can be easy to overlook areas such as refresher training for employees, but it’s important not to let things slip.
Also, bear in mind that it’s advisable to take reasonable steps to prevent other types of harassment from occurring in your business (e.g. harassment related to race). Employers are liable for harassment committed by their workers in the course of employment; however, they will have a defence against claims if they can show that they took “all reasonable steps” to prevent the harassment. Want to talk through what this usually entails? Get in touch.
When it comes to harassment of any kind, it can be ‘banter’ that is a particular problem area with employees, and in some cases managers, not recognising behaviour as harassment but instead seeing it as ‘a joke’ or a bit of ‘workplace fun’ and thinking it’s OK as ‘no harm’ was meant. As it’s all too easy for the line to be crossed, it’s important for employers to make sure everyone in the business has a basic understanding of what harassment is.
3. Appropriately train employees
Training employees, for example, on harassment, sexual harassment, workplace policies and procedures (e.g expected standards of conduct) can reduce the likelihood of issues arising and help to put your business in a better position if they do – a win-win situation.
As you would expect, training does need to be appropriate – offering an employee anti-seduction training as is alleged in the case of Moet Hennessy is not the right way to go, and training does need to be up to date and refreshed, as the employer in Allay (UK) Ltd v Gehlen found out.
If you’re interested in training for your employees or managers, please get in touch to discuss your HR training needs.
4. Know how to spot and deal with a grievance
It’s important to make sure everyone with people management responsibilities in your business can spot a grievance so the matter can be promptly, effectively and appropriately addressed.
In brief, grievances are concerns, problems or complaints that can be about a wide variety of matters, including equal opportunities, bullying and harassment and conditions of employment.
If an employee raises a written grievance, it will usually need to be dealt with in accordance with your formal grievance procedure and the ACAS Code of Practice on Disciplinary and Grievance. In outline, procedurally, this will involve:
- Inviting the employee by letter to attend a grievance meeting (and allowing them to be accompanied by a colleague or trade union representative if they wish).
- Holding the meeting with the employee (and subsequently carrying out any necessary investigations).
- Giving the employee a written outcome and the right of appeal.
Bear in mind that sometimes employees can be reluctant to raise a grievance, for example, out of fear of reprisal, or they may find doing so particularly upsetting due to the circumstances, for example, if they are raising a grievance about harassment. It’s important to handle such situations sensitively.
If an employee in your business raises a grievance, whether formally or informally, please get in touch for advice on the matter you are dealing with. Remember, in some cases, it can be necessary to take disciplinary action in connection with a grievance (e.g. there is evidence that wrongdoing such as sexual harassment has occurred), and we can provide specific advice and support to help your business.
5. Understand how to deal with a serious conduct issue
If an employee in your business has over two years of continuity of service and they are suspected of wrongdoing, remember:
- The matter should be fully investigated before an employee is invited to attend a disciplinary hearing – failures at the investigation stage can lead to problems later on, not least if your business ultimately dismisses the employee, as this may form the basis (or part of the basis) for an unfair dismissal claim
- A fair procedure should be followed in accordance with the ACAS Code of Practice on Disciplinaries and Grievances – as a brief outline, this involves inviting the employee to attend a disciplinary hearing using an appropriate disciplinary invitation, holding the hearing, giving a written outcome and a right of appeal
- Even if the employee is suspected of a gross misconduct offence, a fair process should still be followed to protect your business
- Any disciplinary outcome, e.g. dismissal, should be reasonable in the circumstances
If you are concerned about an employee’s conduct, please get in touch for advice on your situation before acting. Remember, we are here to support you throughout a disciplinary process. For example, we can draft a disciplinary invitation for you.
If an employee has less than two years’ continuity of service, it may be possible to dismiss them quickly and more easily than would usually be the case. However, it’s vital to get advice on a short service dismissal before taking action to determine if there are any risks in your case, as there are a number of high-value claims even short-serving employees can bring.