INSIDER MAY 2018

INSIDER MAY 2018

May 2018

WORKPLACE SEXUAL HARRASSMENT ADVICE How to tackle inappropriate behaviour

DJ ' S DEATH SPINS SPOTLIGHT BACK ON MENTAL HEALTH

Supporting employees who raise mental health concerns

THE WHITBY MUG TWO RNLI staff dismissed over naked mugs

ORKPLACE SEXUAL HARASSMENT ADVICE

The term harassment includes unwanted verbal or physical behaviour that creates a hostile work environment – this could be anything from badgering someone to take part in social activities to being subjected to unwarranted criticism about your work performance to harassment that is discriminatory on the grounds of age, race, disability etc. An ongoing parliamentary inquiry into workplace harassment has shown that sexual harassment is far more common than we might previously have thought.   The most obvious example is making improper advances but sexual harassment includes telling lewd jokes, sharing sexual images and making sexually offensive gestures. The list goes on....up to and including sexual assault.   #MeToo movement shining a spotlight on an issue which is, unfortunately, still prevalent in the modern workplace. Sexual harassment has dominated the headlines recently, with the

The TUC surveyed 1500 women and found that 52% had been victims of unwanted sexual behaviours at work, varying from inappropriate jokes to groping.  Shockingly almost 20% cited their manager or someone in a position of authority as being the perpetrator. 80% of those who had been harassed never reported it. A BBC survey carried out in the wake of the Harvey Weinstein case found that half of British women and a fifth of men have been sexually harassed at work. 63% of those women and 79% of the men did not report it. As an employer, sexual harassment can be difficult to deal with, particularly when the perpetrator is a senior member of staff or, worse, the business owner/CEO.  However to

turn a blind eye is to be complicit in the behaviour, not to mention falling foul of employment law. 

AS AN EMPLOYER YOU SHOULD:

Educate staff and management as to what constitutes harassment, what the boundaries are and what behaviours will and won’t be tolerated 

Support the victim – if harassment is found to have occurred, it could have a serious effect on their health and wellbeing.  Do you offer access to a counselling service etc?

Provide work place training on the topic as well as on equality and diversity, which go hand in hand

Ensure that you have clear and rigorous policies in place which not only act as a deterrent for any potential harassment, but also ensure that the victim knows they can, and should, report any conduct and will be protected should they do so. As much as sexual harassment of any kind is wrong, so is retaliation against an employee who reports that they have been/are being harassed

Train managers not only to spot the signs of harassment but to deal with it sensitively. Equip them with the tools they need to carry out the right investigatory process and procedure should they be tasked with dealing with a complaint

Watch out for banter – yes we all like a laugh to ease the stress of work but it can go horribly wrong when boundaries are crossed and seemingly harmless jokes turn sinister. Keep an eye on what kind of conversations are taking place to ensure you protect staff who might be subject to bullying or harassment

Review your disciplinary process to ensure that it’s suitable to tackle the issue should misconduct be found to have occurred

Remember: an employer is vicariously liable for the actions of its employees, so it will be your responsibility as an employer if one of your employees is found to have committed unlawful sexual harassment and you did not take all reasonable steps to prevent it. It can sometimes be much more difficult for small businesses to tackle sexual harassment than it would be for a large corporation. For starters the work space might be smaller, certainly there would be fewer employees and, therefore, relationships may inevitably be closer than they might be in a larger workplace, which can create a culture with people prone to overstepping boundaries or simply acting outright inappropriately. The added difficulty in a small business is that a victim of any such harassment could be extremely reluctant to raise the issue – either because they work in such close proximity to the perpetrator and there is nowhere else they could work within the business, or because the perpetrator is the owner and manager and there is no one else of sufficient authority to reasonably address them on the matter.  If the owner/manager is content to promote a culture where sexual harassment is acceptable, then it would be extremely difficult for the victim to complain and still remain in employment.   That paints a bleak picture but sadly such businesses do exist.  On the positive side, if this culture is not the norm then small businesses can take steps to ensure harassment doesn’t take place and that, if it does, it’s tackled in an effective and sensitive manner.  It’s all about education.  Everyone from senior management down should be trained in harassment, identifying boundaries and the repercussions if harassment does occur.  Managers must receive higher level training in spotting sexual harassment and how to deal with it, from early recruitment stages throughout all aspects of employment.

While small businesses may find it more difficult from a practical perspective in terms of resources and having staff that can manage sexual harassment complaints it is still possible, and they should comply with their obligations to protect employees from harassment.

DJ'S DEATH SPINS SPOTLIGHT BACK ON MENTAL HEALTH

He told documentary maker Levan Tsikurishvili: “I expected support, particularly considering everything I have been through. I have been very open with everyone I work with, and everyone who knows me. Everyone knows that I’ve had anxiety and that I have tried. I did not expect that people would try to pressure me into doing more gigs. They have seen how ill I have felt by doing it, but I had a lot of push-back when I wanted to stop doing gigs.” With this in mind, what can employers and managers do to support employees who approach them with these concerns? Statistics show that one in four people will face mental health concerns. Whether they are high profile DJ’s or work in an office, what lessons should be learned from Avicii’s death in terms of how employers and HR approach the pressure their employees are under when they are suffering from mental health issues?

The 28 year old DJ had spoken about openly his health, including his struggles with anxiety and use of alcohol to help him cope with the pressures of being in the public eye. He was hospitalised for acute pancreatitis, reportedly caused by heavy drinking, and in 2016 announced his retirement from the music industry due to health reasons.  A documentary that was filmed before his death reveals that concerns about his mental health went further than previously known. In the documentary, Avicii: True Stories, Avicii said that he “was going to die” if he didn’t stop performing and had reportedly warned his management team repeatedly about the effect his job was having on his health.  The death of superstar DJ Avicii has once again thrust mental health in the workplace into the public eye.

Pam Rogerson, HR Director for the ELAS Group, says: “From a HR perspective, employers should always take mental health concerns seriously. If an employee is exhibiting signs of mental ill- health then we would always refer the employee to their GP and ask that they remain off work until their GP considers them fit for return. At the same time, we would put occupational health support in place and consider possible variations to the employee’s work to alleviate any work- related stress causes. There is a legal obligation on employers to consider reasonable adjustments to an employee’s role if their condition is a disability. “We have seen time and time again that alcohol and substance use can be a symptom of deeper mental health issues so, while physical health symptoms stemming from abusing them are being treated, employers should also consider the reasons behind the abuse. If an employee is known to have an alcohol or drug problem then there are various options available to employers to offer help and support.” Emma O’Leary is an employment law consultant for the ELAS Group. She says: “The Equality Act provides protection from discrimination for anyone who suffers from a disability. Many mental health conditions are considered a disability within the meaning of the Act and, as such, there is a duty placed on employers to make reasonable adjustments for employees with these mental health conditions, and ensure that they are not treated less favourably on the grounds of their disability. This may include accommodating reduced hours and allowing increased time off for medical appointments/treatment.

“Failure to consider reasonable adjustments and/or treating the employee less favourably than you would any other employees can give rise to a discrimination claim. In addition, employers are under a duty to take reasonable care to ensure that employees do not suffer psychological harm as a result of their work. This could be by exacerbating an existing mental health condition or by not taking precautions to protect employees from developing a psychiatric illness (injury) i.e. work-related stress. It is therefore crucial that employers address any mental health concerns and put measures in place to support their employees. Employers who they fail to do so, especially if the employee makes them aware of their mental health condition(s), could find themselves on the receiving end of personal injury or other litigation claims.”

RNLI STAFF DISMISSED OVER NAKED MUGS

Although the precise employment status of the individuals is unclear, it Is fair to say that if what the report says is true about their sacking, then this would not be a recommended way of proceeding. “Whatever one’s personal feelings about the precise nature of the misconduct, it appears that mugs belonging to the trainee and crewman were a concern to their employer. Due to the nature of the personal items, it is also suggested that overarching Safeguarding regulations might also have been breached. The RNLI is right to confirm that they “cannot allow bullying, harassment … in a safe inclusive environment”; the question is whether they went about addressing these concerns in a fair and reasonable manner. “Working backwards for a change, according to the report both individuals were dismissed over the phone. This is an instant fail in the eyes of HR professionals. However, there is reference to a disciplinary hearing which seems to have included a consideration of private social media communications between the pair.

Newspaper reports say that Ben Laws, who had volunteered for the RNLI for 15 years, and trainee Joe Winspear were fired due to safeguarding concerns after a complaint was made about mugs featuring naked women, one of which had a crewman’s head superimposed on the body. A spokesman for the RNLI said “We are aware of speculation about the issue on social media but we want to stress that this is not a trivial matter.” Two mugs given as a Secret Santa gift by Whitby lifeboat crew members have resulted in two crewmen being sacked and four others resigning in protest.

ELAS employment law consultant David Southall takes a deeper look at the case:

“This is obviously a hot button topic as it features issues that ignite strong views across the social and political spectrum. However, from an HR / employment perspective, it is between the lines of the report that we can find a useful reminder of the importance of having proper procedures in place. 

To be generous, the reference to a “phone call dismissal” may just be the charity informing the two individuals of the outcome of the disciplinary process. The correct procedure would be to follow up the phone call with a letter confirming the decision and the reasons behind it and advising the recipient of their right to appeal. This step should always be taken whenever someone is dismissed. “The mention of social media muddies the water in respect of the reasons for dismissal. Any invitation to a disciplinary hearing should state the alleged acts of misconduct, with enough clarity that the employee is able to answer questions about them. Ideally there should be copies of the information that the employer wishes to rely on, attached to the invitation. It is unfair to ambush an employee with previously undisclosed documentation and interpret their confusion as evidence of guilt. The link between the mugs and social media is not stated. If there has been a recent history of problematical behaviour, then these may be considered together at a disciplinary hearing. However, to invite an employee to a hearing about one act of alleged misconduct but talk about additional ones for the first time is not good practice if you wish to rely on them for a dismissal. It is also risky, if the report is to be believed, for the employer to look at the private, non-work related, communications between employees. Unless they received full consent from their staff to access private emails then this would not be recommended, especially with the GDPR regulations that take effect at the end of May.

“Going right back to the beginning, whenever problematical conduct of staff is brought to their attention, the employer should firstly invite the individuals involved to an investigative meeting. This is purely a fact- finding exercise to put the situation to the employees and obtain their initial explanation. Although an incident may initially be of concern it could be that the person had approval for their actions from their own manager / supervisor. This avenue of exploration should always be undertaken before embarking on a full disciplinary process. It may bring up an innocuous explanation which can be a reminder to review your internal procedures. However, if there is a breach of your disciplinary procedures then you will be starting them on firm grounds. “If any lesson can be drawn from the reporting of the ‘Whitby Mug Two’ it is IDO – Investigate, hold a Disciplinary and provide a written Outcome. Following these steps, and taking legal guidance, will hopefully reduce the chances of your dismissals being reported in a hysterical click-bait manner.”

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T: 08450 50 40 60 E: [email protected] W: www.elas.uk.com