Workplaces are fraught with new sensitivities and complexities. The number of employment rights under which an employee could make a tribunal claim has more than tripled since the 1980s – and now the rules and muddle of Covid-19 have introduced yet another dimension to the potential for disputes and disruption.
Perhaps the biggest shift is in the emerging politics of individualism, the break from the old assumption that senior figures – usually white males – in an organisation made the rules for everyone about what constituted an acceptable outlook and behaviours. #MeToo, Black Lives Matter, and the fierce arguments around gender and trans issues are just some examples of the breakdown of those assumptions. Employees expect to have their perceptions recognised and valued, and feel increasingly able to challenge every out-of-place workplace attitude. Social media is a powerful free-for-all channel which allows ‘the feelz’ to dominate; employees are quicker than ever to feel an injustice and then to voice their unhappiness.
Employers therefore have to be ready to be challenged more often on the ‘truth’ of events and behaviours in the workplace, for more reasons and to a greater degree of intensity. Is it viable any longer to base decisions about grievances and disciplinaries on what ‘a reasonable person’ would think? What ‘the man in the street’ of yesteryear felt was fair and reasonable may, today, be less so universal a view. An older, senior executive referring to a trans woman employee as a ‘he’ may have no understanding of the offence he is causing. Today, minority groups which see how their perspective isn’t shared by the collective, are up in arms that they are invisible to the justice system.
In this sensitised and challenging context, employees might trust that any support from or intervention by HR will be rock solid: that the best available standards have been followed, that processes have been transparent and accountable, and that consequently all judgements have been fair and reasonable. In disciplinary matters, where people’s jobs and future careers are at stake, and where the risk to an organisation’s reputation is so very close to the surface, employees might expect that only the best will do.
But we know from the regular failures reported at employment tribunals and from the years of anecdotal evidence of working with employers, that standards for disciplinary and grievance investigations aren’t being followed. The gap between what HR says is being done and what’s happening in reality is a chasm. There are shortcuts being taken everywhere. Investigators will, at best, receive a day of training of the process to follow – in other words, the people involved with gathering evidence for a complex and painful sexual harassment case will have far less training than those looking into a health and safety case of staff falling off a ladder. And that training will only be about process and Acas guidelines, not the actual skills needed to be an effective and fair investigator, able to stand up to ever increasing scrutiny.
When an investigation is complete, it is passed to a senior manager for a determination. Such managers, acting as hearing managers, will have had less training in their role than investigators gathering the evidence. Theirs is the responsibility for deciding whether there is a case to answer, and what the outcome should be. Although such managers are chosen because they have ‘years of people management experience’, they may also be the most liable to make snap judgements based on what they think they already know, and on the values and beliefs that have served them as high achievers, making them liable to downplay allegations as misplaced examples of political correctness.
Rightly, HR will often refer their investigators and hearing managers to the guidelines; but these don’t specify the ‘how’, just the ‘what’, of investigating. And any training that is provided to investigators has no assessment of practice in the classroom let alone on the job; no evaluation of competence, no CPD, and no requirement for supervision or mentoring. Investigators are by and large left to get on with it.
This shouldn’t be seen as HR professionals’ fault. Their time was already dominated by everyday pressures, and now Covid-19 has swept them off their feet. Equally – and this a generalisation – HR is a profession largely made up of younger women who don’t feel themselves in a position to dictate terms to investigators, let alone hearing managers who tend to be very senior, older and male. What’s needed is determined attention to raising the standards of investigations: meaning setting solid standards for best practice in the ever-changing context, providing professional skills training, making sure there is quality assurance in terms of measuring performance, and learning for the investigator and for the employer. Without any kind of objective monitoring and evaluation, HR cannot be confident that investigations are done well.
In practice, employers have been getting along with not following standards. But for how much longer and at what price? The biggest price of all for HR, those working in the people business, will be the betrayal of principles, knowing their people aren’t being given the chance of fair treatment, a human benefit of the doubt.
Katherine Graham is chair of CMP