Australian law firm Lander & Rogers recently introduced a ‘no bystander rule’, making it compulsory for all staff to report sexual harassment they witness. With bullying and harassment still so prevalent in the workplace, is encouraging witnesses to speak out enough? Or is it time to introduce mandatory reporting requirements compelling witnesses to come forward?
Boris Johnson recently announced that “there is no place for bullying” in our society. Racism, bullying, sexual harassment and other inappropriate behaviours contribute to a toxic culture. The impact can be hugely damaging, leading to stress, anxiety and mental health problems. It also creates risks for employers that could be deemed liable for the actions of their staff.
Elie Wiesel, a Holocaust survivor, once said: “What hurts the victim the most is not the cruelty of the oppressor but the silence of the bystander.” We can all be bystanders. At some point, we will register wrongdoing and, when this happens, we either decide to do or say something (be an active bystander), or to simply let it go (be a passive bystander).
When we intervene, it signals to the perpetrator that their behaviour is unacceptable. If such messages are reinforced within the workplace, including by management, we can shift the boundaries of what is considered acceptable, protecting employees and employers alike.
Professions that are regulated, such as those in financial services (under the Financial Conduct Authority) or law firms (by the Solicitors Regulation Authority), are often ahead of the game as they have a duty to act with integrity and report wrongdoings as part of their regulatory compliance. Recently, a former partner of magic circle firm Freshfields was fined £35,000 after spending the night with a junior colleague and, while the outcome was overturned on appeal, the High Court argued that he was “caught on the shifting sands of attitude towards sexual behaviour”.
Workplaces need to ensure that victims and witnesses can come forward and report allegations safely. Victimisation is prohibited under the Equality Act 2010, making it unlawful for an individual to suffer a detriment if they raise allegations of discrimination or help someone who has been the victim of discrimination. However, witnesses are often afraid to speak up. This can be for a number of reasons, including fear of where it could lead, losing their job or not being believed. This can be especially so if they are junior or new in their role or it involves ‘snitching’ on their manager or a direct report.
Legally, employers are unable to force witnesses to come forward or participate in workplace investigations. To change the legal landscape in this respect would appear too arduous. A more realistic approach would be to start with the employee handbook or relevant policy, amending the requirement that staff ‘should’ to ‘must’ report harassment and state the implications of not doing so. Failure to report any wrongdoings could be added to the list of potential disciplinary sanctions so that witnesses know they are under a duty to act.
Appropriate reporting mechanisms need to be in place to support businesses to root out unacceptable conduct. Anonymous helplines to report incidents of harassment is one way of achieving this. Training needs to be provided to staff so that they recognise acts of harassment and know how to report it and to whom.
Implementing mandatory reporting requirements could materially alter the approach to harassment, making the workplace safer for all. While enforcing a no bystander rule may seem extreme, it is up to organisations to lead the way, setting the precedent for others to do the same.
Fiona Mendel is an associate at Seddons
Published at Tue, 05 Jan 2021 04:49:00 +0000