On 25 May 2023, Fieldfisher's Head of Employment, Pensions, Immigration and Compliance Ranjit Dhindsa chaired a discussion between senior figures at a number of global organisations on how they respond to inappropriate behaviour in the workplace. Below is a summary of the outcomes of this discussion.
This article looks at a number of questions around the implementation of policies and strategies, based on the findings from the focus group which included a number of organisations of different sizes and turnovers.
It also breaks down the role of disciplinary action as well as what the term 'zero tolerance' actually means and how organisations can achieve it.
What is the general position on inappropriate behaviour?
It is essential that organisations have clear policies, procedures and governance in place to deal with inappropriate behaviour. These range from training, coaching and support to disciplinary action including gross misconduct.
Perhaps surprisingly, it is generally felt that dealing with extreme cases is often far easier than handling cases of inappropriate behaviour that are considered less serious. In these latter cases, where the behaviour complained of might be on the border between acceptable (if indadvisable) and inappopropriate, organisations tend to be divided in their opinion on how to approach such conduct.
This lack of consensus and clarity has the potential to cause controversy and reputational risks to an organisation.
What does "zero tolerance" actually mean and how can it be achieved?
The term "zero tolerance" feels and sounds quite extreme, and at face value suggests that anyone who behaves inappropriately will be immediately dismissed.
However, when interviewing organisations on this subject, they all agreed that this term should not be taken literally.
Instead, it should be viewed as an indication that action would always be taken and inappropriate behaviour would be addressed rather than leaders turning a blind eye.
Some organisations have moved away from the term completely, instead adopting terms such as "zero harm" or "acting with integrity".
From a HR perspective, this means that the definition of "zero tolerance" must therefore be outlined clearly.
Organisations should always take a proactive stance, setting the bar high from the start for the behaviour that they expect to see in the workplace, leading by example and introducing and maintaining clear policies.
What is the alternative to taking disciplinary action?
Responsibility taken by the individual
Our focus group agreed that where individuals reacted by taking responsibility for their behaviour, demonstrating self-awareness and a willingness to improve, disciplinary action may not always be the appropriate way to react.
Instead the individual involved could be put on a programme with defined objectives to support improvement in their behaviour.
Training can be a tricky topic, and is often viewed as not going far enough to change behaviour, especially if it was, for example, only an online course or a one off session.
Whether it should be mandatory or not was a topic of debate but what participants could agree on was that face-to-face training, and providing real life situations and tools to deal with incidents was more valuable than simply conveying information.
Investment was also seen as a fundamental stepping-stone to creating a positive working environment.
Those in attendance who had experienced adverse events or serious behavioural issues had focused more on training and education than those who hadn't had these experiences.
What was clear was that a significant amount of time and resources had been invested in embedding the values and behaviour expected within the workforce.
Examples of this included leaders spending at least 50% of their town hall meetings talking about the Code of Conduct and behaviour expected. Our conclusion from this was that when individuals are prepared to improve their behaviour, they need to be extensively supported.
Code of Conduct
Providing clear outlines and guidance is always a fundamental step to increasing understanding. Whilst there isn't a one size fits all approach, a document which contains a companies' fundamental values and standards of behaviour is a great starting point for everyone.
It can then be refereed back to and shared with individuals who are keen to improve their behaviour and this also means that everyone is held to the same standard, creating consistency within teams.
Organisations also needed to define bulling (particularly in the absence of a legal definition) and ensure individuals understand when bullying can occur. A great way of doing this is sharing previous real life examples that have occurred in a firm's history, and how they were handled.
Does disciplinary action lead to a change in behaviour?
All the firms at our roundtable agreed that disciplinary action in itself would not lead to a change of behaviour and improving the culture within the organisation was critical.
Extreme cases of misconduct, bullying and harassment are easy to deal with and often lead to gross misconduct dismissals.
However, as outlined in the introduction, the more challenging cases related to those that amounted to bullying, but were not extreme enough to warrant dismissal on notice or labelled as gross misconduct.
A key question that arose was around the level of warning that should be provided, and whilst this may depend on the individual, acting consistently is paramount.
Many of those in attendance had an independent panel that reviewed all cases and determined whether there should be a first, second or final written warning.
Other sanctions which worked effectively as a form of disciplinary action included:
- Not receiving a bonus
- Not receiving promotion (until changes in behaviour are demonstrated)
- Receiving a poor appraisal rating
Health and Safety or Code of Conduct?
Another finding was the use of the Health and Safety policy, which could be referred to in cases of inappropriate behaviour.
This policy could be used in cases that involved alcohol and many of those that we spoke to mentioned that they had scaled back social events and no longer served unlimited alcohol.
Many were clear that consuming alcohol was never a defence to inappropriate behaviour and as well as making changes to work events (such as monitoring the alcohol served), they also found that placing a senior person in charge (and always having someone in a position of responsibility) allowed them to take control and ensure employees felt protected.
These sort of events could lead to inappropriate behaviour, and others in the workforce witnessing it but not reporting it.
A few organisations reported that they had issued warnings to individuals when they felt they had failed in their personal responsibility to report inappropriate behaviour they had witnessed.
However it's difficult to assess if issuing warnings does lead to a change in behaviour as few organisations record this sort of data.
What support is there (and should there be) for managers carrying out disciplinary action or processes?
It was agreed that issues relating to inappropriate behaviour were difficult and stressful for all concerned.
The alleged victim and perpetrator both need support and the fact that EAP programmes are now offering specialist support for under represented groups, rather than just a telephone conversation is definitely a step in the right direction.
In addition to the victim and perpetrator requiring support, managers who have to deal with these cases also need coaching, particularly when they are the investigation, disciplinary, appeal or line manager.
However, few organisations voluntarily offered such support and the onus was on the manager to request support, which was reportedly rarely done.
One company had created advocates who could help managers dealing with cases involving allegations of racism and the role of the advocate is to be a subject matter expert and help the manager carry out their role.
A potential suggestion here would thus be to create advocates across the board for all forms of discrimination in the workplace, specific individuals who can support their teams and be the 'go to' for any situations that arise.
Reporting matters to the board
Our focus group reported that matters were reported to the board in different ways and to different levels. Some reported extreme matter cases only on an annual basis and others reported all cases of inappropriate behaviour and the response more frequently.
Organisations need to review the number of cases they deal with, and having zero cases was actually not reassuring, but likely a sign that there is an issue within an organisation about the reporting of inappropriate behaviour.
Having lots of cases reported was a positive sign that employees felt confident to report bad behaviour in the knowledge that the organisation would deal with it, and in all of these cases it's clear that capturing data on themes and patterns is important to identify areas of improvement and report to the board.
Our final takeaways were that dealing with inappropriate behaviour required a holistic approach involving:
- The right policies, procedures and governance
- Embedding the policies and procedures throughout the organisation
- Holding leaders and managers to account for role modelling good behaviour
- Ensuring training was relevant
- Creating ambassadors for the organisation who advocated good behaviour
- Disciplinary action was necessary in some cases but could not change behaviour in isolation
- In extreme cases dismissal was the only appropriate response
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