Ask the HR agony aunt... Being overruled in a harassment case
Rachel Sharp, April 23, 2019
Here are some real-life dilemmas faced by HR directors we spoke to, and the advice from others in the profession
"An employee made a sexual harassment allegation about a senior manager. I investigated it and it was upheld. The victim wanted to keep it low key and not go further than HR as she didn’t want it to get back to her husband.
The perpetrator was senior management and a good friend of the trustees. When it got to the point where it was classed as gross misconduct, because of his seniority I had to get sign-off from the trustees. They bypassed me and did a deal with him. The victim carried on in the organisation. But the perpetrator walked away with a sum of money whereas I was ready to dismiss. An NDA [non-disclosure agreement] was also used; it wasn’t requested by the victim and was decided on by the board without my involvement. I pushed back and made it very clear how I felt about the outcome – I think that’s what led to me being restructured out a short while later. What should I have done?"
For McGuireWoods’ London office managing partner Dan Peyton this HRD took the correct approach by investigating the matter and recommending dismissal.
The first ethical dilemma arises around the victim’s wish to keep it low key. “You have to push hard and ultimately take it out of the employee’s hands,” says Peyton. “You respect their concerns, but if someone has told you something serious you have to deal with it.”
And, despite the victim’s wishes, HR has to take it beyond the function, agrees the British Council’s director HR, global network Ian Williams. “You can’t not have [the alleged perpetrator’s] manager involved as that undermines trust in us as a function. But be clear with [alleged victims] – we shouldn’t give them a false sense of security we’re not going to tell anyone else as that’s unrealistic.”
Things become greyer around whether this bad behaviour should be publicly exposed in the name of organisational transparency (and preventing potential further wrongdoing by the perpetrator), or kept quiet in line with the victim’s wishes and to preserve the reputation and prosperity of the wider business and its stakeholders.
After all, if consumers boycott Philip Green’s stores and profits slump because of allegations against him don’t innocent retail workers and their job security stand to suffer most?
“It’s something that needs to be thought about,” says Charles Stanley’s group HRD Kate Griffiths-Lambeth. “Frequently one incident is one pebble in a much wider pond – you need to look at where the ripples go.”
The transparency debate brings us to the topical issue of NDA use. (The government recently announced new legislation that would prevent these being used to stop victims reporting serious complaints to the police.) “If we’ve gone through an investigation and the outcome is gross misconduct it’s totally inappropriate to pay that individual money and do an NDA – that breaches any sort of ethics,” argues Unicef UK’s chief people officer Claire Fox.
But to say NDAs should be banned altogether is “too blunt”, says Williams. “An NDA is an option if the victim doesn’t want it to go public – if that also means the accusation is kept confidential that’s an acceptable outcome.”
Neutrality is the best stance for HR, believes Williams. “You give the victim options and show them the pros and cons but they have to make the choice – we mustn’t encourage one particular route over another.”
HR has an ethical responsibility to the alleged perpetrator too, points out Peyton. “If someone’s career would be in tatters in relation to something that’s never been proved there may be merit in using a settlement agreement to give both parties something out of the situation,” he explains.
NDAs aside, the real ethical test comes down to what the HRD does after being overruled by the trustees. “If that was me and the trustees intervened and overruled me I’d go to the Charity Commission or other relevant regulatory body (depending on sector),” says Fox. “The trustees should not have the governance to overrule that because it’s an executive process not a governance process.”
The ultimate dilemma – to stay or go – is also at play here.
“If you’re seeing behaviour that doesn’t sit comfortably with you, at what point do you become embroiled in it?” asks Martyn Dicker, founder of The POD Consultancy. The danger is that, in staying at an unethical firm, the HR professional becomes complicit in unethical behaviour. “Stay and do what you can to influence, but you may come to the conclusion that you can’t influence it and that’s bloody tough,” he says.
In the scenario above the choice was taken out of the HRD’s hands. But HR Hero for Hire’s founder Shakil Butt believes that’s the price HR sometimes has to pay to maintain personal ethics. “Some HRDs have said to me ‘but we risk losing our livelihood’. We either risk losing our livelihood or losing our dignity. And in that situation it’s either the right thing to do or it’s not the right thing to do,” he says.
“Behaving ethically isn’t easy – if it was everyone would be doing it.”
This piece appeared in the April 2019 issue. Subscribe today to have all our latest articles delivered right to your desk