Bullying, harassment and discrimination

Following the revelations concerning Oxfam and the Presidents Club, the spotlight has been firmly focused on the charity sector and the culture within it. Investigations and reports have been produced highlighting failings and bad practice. Research has not identified how prevalent bullying, harassment and discrimination is within the charity sector, however what is clear is that there are examples of abusive organisational cultures, and that “bullying cultures demonstrate clear breaches of trust and values upon which charities depend, both for their legal status and for their credibility”.

As time passes, we move away from dissecting the failings of a few, and instead turn our attention to how the sector as a whole can adjust and improve, restore public trust and confidence, and ensure that staff and volunteers are supported in the work they do for us.

In this article we look at some of the reports and guidance produced by those in the sector, and extract learning points for charities of all sizes.

    Trustees’ duties

    Firstly though we remind ourselves of Trustees’ responsibilities which include ensuring that your charity complies with relevant law including around safeguarding, employment, pension, equality and health and safety law. The Charity Commission confirm that “you must take reasonable steps to protected people who come into contact with your charity from harm”; this includes staff and volunteers. The Charity Commission is clear that safeguarding should be a governance priority for all charities.

    The Oxfam Report

    The Charity Commission Inquiry Report, published in June 2019 following the review into the Oxfam failings, identifies that key duties were abandoned. In the foreword to the report, the Chair notes there are “important lessons that all involved in charity must learn from” and “sound processes and systems in charities are crucial to prevent this, but still more important are the people, the attitude and behaviours they display, and the culture they promote”. The importance of establishing a culture of safeguarding cannot be overemphasised. All staff and volunteers (including trustees) need to model good practice in relation to safeguarding and understand the importance of adhering to a charity’s policies and procedures. Poor behaviour must never be tolerated or left unreported.

    The key learning points for all charities arising from the Oxfam report are:

    • Investigations: investigators should be experienced in dealing with relevant issues, and all lines of enquiry should be pursued. In compliance with employment law, charities should ensure that the investigation is reasonable in all the circumstances, which includes considering the size and administrative resources of the employer’s undertaking. Therefore, what is reasonable for Oxfam may not be reasonable, or indeed realistic, for a smaller organisation. Trustees will also have to consider the nature of the allegations to be investigated when identifying the scope and detail of any investigation.
    • Exits: Oxfam’s wish that senior staff had a “phased and dignified” exit was roundly criticised, particularly as it gave the impression that senior staff were treated more leniently. The Commission were particularly critical of Oxfam’s wish to protect a senior individual and ensure favourable future employment prospects. The Charity Commission were also critical of the failure to achieve parity of treatment across the hierarchy, and the lack of consistent application of disciplinary processes, policies and procedures.
    • References: the approach of agreeing an exit, rather than investigating misconduct and pursuing disciplinary proceedings, meant that other organisations could not mitigate risk in undertaking reference checks. The Charity Commission also noted that charities should obtain a reference from the employer, and not rely on personal references.
    • Reporting: there should be full, frank, and timely reports to the regulator, with material facts being disclosed. In the appropriate circumstances, reports to the police, Local Authority safeguarding officer and the Disclosure & Barring Service should be considered.

    The overarching theme throughout the above points is that misconduct must be investigated thoroughly. The Charity Commission do not consider it appropriate to avoid disciplinary processes by agreeing an exit to staff: to do so allows systemic failings to perpetuate, exposing the charity and its beneficiaries to risk, and allows individuals to stay within the sector thereby compounding the risk to the sector as a whole. We are also reminded that our duties extend beyond our own to staff to prospective employers and the sector as a whole. We must also not forget that incidents relating to staffing can amount to serious incidents that should be reported.

    House of Commons Women and Equalities Committee

    The above points echo through the House of Commons Women and Equalities Committee report on the use of Non-disclosure agreements (NDAs) in discrimination cases. They state: “another concern is that the use of NDAs effectively covers up unlawful discrimination and harassment, allowing management behaviour and organisational culture to go unchallenged and unchanged. What is more, this can enable perpetrators to go on to harass or discriminate against others and prevents victims of such behaviour from knowing about or supporting other complaints”.

    Whilst the Inquiry and Report are not focused specifically on the charity sector, it would be wrong to assume that the problems are confined to the private and commercial sectors. It is interesting that the failings identified in the Oxfam case are seen to be pervasive across sectors. It is also worth noting that in the Oxfam case it was an alleged perpetrator who was quietly exited with a payment, whilst the House of Commons report focuses on the victims being paid-off to keep quiet. What both scenarios have in common however is the impression that organisations are turning a blind eye to problematic individuals and/or cultures, and consequently are failing to protect their staff.

    Charity Ethical Principles

    The National Council for Voluntary Organisations (NCVO) has produced a set of Charity Ethical Principles, which provide a framework for charities to operate and avoid the failings described above. In what is a succinct, accessible and pragmatic document, charities are advised how to achieve the standards set.

    There are four key principles: beneficiaries first, integrity, openness, and right to be safe. The NCVO notes that “endorsement of the principles is voluntary, but all charities are encouraged to reflect on the principles in their work and decision-making. The principles should be viewed as a benchmark of good practice, and by reflecting them in its work an organisation is more likely to maximise the difference it makes and champion its values”.

    In the context of addressing bullying, harassment and discrimination, the Principles guide us to:

    • Publish your approach to safeguarding, bullying and harassment, your complaints procedure, and your whistleblowing policy;
    • Establish clear lines of responsibility and accountability for your work;
    • Have a clear approach to prevent abuse of trust and power including bullying, intimidation, harassment, discrimination or victimisation in all your activities;
    • Create a culture that supports the reporting and resolution of allegations, suspicions or concerns about abuse of any kind or inappropriate behaviour; and
    • Ensure that anyone working or volunteering for the charity understands the expectations placed upon them, and provide the relevant training to support them in meeting their responsibilities.

    It is clear that the NCVO consider documentation to be the foundation upon which a strong positive culture can be built. To name but a few: safeguarding, code of conduct, equal opportunities, grievance and disciplinary, and whistleblowing policies are all key documents in setting the tone for the organisation. These policies must not simply exist on paper but must be effectively implemented on the ground.

    ACEVO report

    However, documentation will only take you so far. The ACEVO report “In plain sight” looks at workplace bullying in charities and the implications for leadership. Funded by the Department for Digital, Culture, Media and Sport, ACEVO and the Centre for Mental Health have investigated bullying in the sector, speaking to victims of bullying. The analysis identified that chief executives and senior managers were considered to be the perpetrators of bullying in the majority of cases, with trustees also accused. It also identifies that over two thirds of victims left the organisation in consequence of their experience of bullying.

    The report concludes with recommendations, the key ones for trustees being:

    1. Charities should nominate at least one trustee and one senior manager to lead on staff workplace wellbeing;
    2. Policies, procedures and practices should reflect charities’ commitment to promoting safe cultures and fostering good relations;
    3. NDAs should never be issued so as to restrict a victim of bullying from disclosing traumatic experience in a therapeutic setting.

    There has been a call to arms for all in the sector to address the challenges of bullying, harassment and discrimination in the workplace. Through a combination of robust policies and engagement of trustees and senior leaders implementing change, charities can ensure that they have a happy, healthy and engaged workforce. A positive workplace culture reduces risk of disputes, and enables trustees to focus on pursuing the charity’s purpose.

    If you would like support on any areas covered by this area, please get in touch. The employment team are able to undertake investigations, review policies and procedures, support disciplinary and grievances processes, and advise on legal risks relating to bullying, harassment and discrimination.

    The law and practice referred to in this article has been paraphrased or summarised. It might not be up-to-date with changes in the law and we do not guarantee the accuracy of any information provided at the time of reading. It should not be construed or relied upon as legal advice in relation to a specific set of circumstances.

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