It’s been a busy few months for employment lawyers, particularly those in Wales. At the beginning of this month, Nerys Evans’ “Prosiect Pawb” report was published.
Commissioned by Plaid Cymru following allegations of a toxic culture within Plaid, it made 82 recommendations to tackle issues of sexual harassment, bullying and discrimination. Many of those 82 recommendations were to introduce and implement robust HR policies and procedures, to review contracts and staff handbooks and provide leadership and culture training.
It was a long list of tasks for Plaid Cymru’s HR advisors and employment lawyers. On the very same day, as the Prosiect Pawb report was published, S4C announced it had commissioned law firm Capital Law to undertake an investigation into claims of a “bullying and toxic culture” at the Welsh language TV channel.
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In March, the appointment of an independent review panel was confirmed to investigate allegations of discrimination and organisational culture at the Welsh Rugby Union during the period 2017 to present. The panel is chaired by former Court of Appeal judge Dame Anne Rafferty.
In April, law firm Fox Williams produced an investigation report into the Confederation of British Industry. Their report also made recommendations about the review of HR policies and procedures and training. The lawyers working directly on these investigations and reports are having a busy start to 2023 but there has also been a wider ripple effect for employment lawyers generally.
There have been a number of articles and comments in both print and digital media about the lessons to be learned from these investigations and reports and employers are being encouraged by their advisers to review their own employment policies and procedures but also their leadership training and their culture.
These two things go hand in hand in my view because there is little point in having employment policies and procedures if employees do not feel able to follow them or if when they do employers do not listen. The focus of employers and their lawyers has changed a lot over the years I’ve been working in employment law and particularly since 2017 when the Me Too Movement first began.
When I first qualified, my experience was that the majority of employers wanted their lawyers to help make difficult situations go away quietly. A complaint of bad behaviour would be resolved by skipping the complaints process and cutting straight to the end with a pay-off and a signed agreement with confidentiality provisions.
Sometimes the victim would get the pay off, sometimes the perpetrator and sometimes both. Employers didn’t want to shine a bright light into dark corners to establish how these situations arose or how they could be avoided in future and their objective was to resolve the problem with as few people as possible knowing about it.
That’s not to say that resolving complaints quietly with a pay-off doesn’t still happen because it does. Often a pay-off is exactly what the complainant asks for when asked what a good outcome to their complaint would look like for them.
But increasingly employers, particularly larger employers with more resources, do far more than just have a set of robust employment policies and procedures. They:
Breathe life into those policies and procedures through regular training and workshops
Encourage people to feel able to voice their complaints and take those complaints seriously by investigating them
Train in leadership and culture and ensure that senior people and managers in the organisation are equipped to lead by example
Do not ignore bad behaviour from senior executives or high performers just because they are senior or high performing and to challenge them would be bad for business in the short term
If there has been a difficult situation in the workplace, review it and draw up a plan of action of what needs to be done to prevent it happening again
This is not difficult stuff to understand but is not easy or cheap to implement and follow. If successfully done it could also mean less work for employment lawyers in the future. For now at least, it seems there remains plenty to keep us busy.
Bethan Darwin is a partner with law firm Thompson Darwin
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