Sexual harassment in the workplace – legal changes, generational shifts

Robert Shore: Hello, and welcome to the Brightmine podcast, formerly known as the XpertHR podcast. Brightmine is a leading provider of people data, analytics and insight, offering employment law expertise, comprehensive HR resources and reward data to meet every HR and organisational challenge and opportunity. You can find us any time of the day or night at www.brightmine.com.

My name is Robert Shore, and today we are going to be discussing sexual harassment in the workplace. To do this, I am joined by Lisa Bell from Tell Jane, which is a HR and ED&I consultancy dedicated to tackling toxic workplace behaviour and enhancing company culture. Lisa has authored our new harassment and sexual harassment leading practice guides, which you can access on the Brightmine website, and these are published, of course, to coincide with the legislation coming into effect on 26 October 2024, which provides for a positive duty on employers to take reasonable steps to prevent sexual harassment of their employees in the course of their employment. Lisa, welcome.

Lisa Bell: Thanks for having me.

Robert Shore: You’ve just written the guides for us, but I think first of all you now run an organisation called Tell Jane. And I just wanted to know about your experience before setting up Tell Jane.

Lisa Bell: I’ll start maybe just before I started Tell Jane. So, I was pregnant at the time. And I was in the middle of a huge TUPE programme for a client, and I found it quite demoralising. And it was around the time of the MeToo movement starting on the news. And I was having a lot of reflections of things that had happened earlier in my career, and I knew that I didn’t want to go back into sort of this fractional HRD role that I’d been in, and I knew that the maternity leave that I was about to embark on would provide me with an opportunity to sort of reflect and reposition how I was.

And I was watching all the stuff unravel on the news, and it really took me back to a time in my career when I was around 24, 25. I remember being at an awards dinner. There was somebody quite prominent in the industry that was receiving an award. And after the awards, the individual stuck his hand up my skirt. And after he did that, I told him not to do that – and maybe used slightly different language! – and I went and spoke to the CEO of my company at the time, who went and had a word with the individual. And frankly, I felt it was dealt with really, really well. I felt like the matter was closed in the moment. And I didn’t feel aggrieved at the end of it.

I actually never really thought about it again until this stuff was happening on the news, and it did make me reflect because I realised that I was in a very privileged position, that I had a good relationship with my CEO that respected and trusted my opinion and didn’t question when I spoke up. And I thought about how many other people out there might not be in the same situation and might not have had such a good experience when they spoke up.

Tell Jane was born from that. I really originally set up Tell Jane to be a sexual harassment prevention service. So that gives you a little bit of a flavour of me and why I do what I do.

Robert Shore: Yeah. I mean, it’s quite interesting then that it’s borne out of you effectively having a good experience…I mean, obviously there’s something very unpleasant happening but actually you felt that it was really well handled.

Lisa Bell: Yeah.

Robert Shore: But then you wanted to carry that forward so that other people could also have a similarly good outcome?

Lisa Bell: Yeah. I know. It’s hard to find the right words sometimes when talking about something so sensitive as well. You know, it’s sometimes…and even today, you know, I might be clumsy with my words with some of the things that we’re talking about. But I always think it’s good to have brave conversations around these things and be forgiving if we are…I mean, I sometimes find myself in these situations but it’s important that we talk about the things that make us feel uncomfortable, like sexual harassment, like sexual assault. By talking about it, it’s a great way to embolden other people to speak up. Because that is often the challenge around this stuff. It doesn’t matter what survey you look at and what industry you look at, the stats tell us that people don’t speak up.

Robert Shore: How does Tell Jane operate, then? How does it…how have you modelled it in order to assist with that process?

Lisa Bell: Well, there’s three parts to the business. One part, it sounds counterintuitive but it is dealing with sensitive workplace investigations. I always want HR to get on the front foot more broadly and prevent things, and that’s where this new duty coming in is great from my perspective, ‘’cause it has got that prevention element within it. But also there’s nothing quite like a badly handled investigation to sort of linger in the air and unravel all the prevention work that happened. So we provide investigation services, which also inform the rest of our prevention training that we do. And we have an anonymous reporting service as well, so people can speak up.

Often these things are muddled into whistleblowing procedures, and actually the people picking up the phone deal with whistleblowing sometimes but don’t always have the experience to deal with assault cases.

Robert Shore: So obviously the new duty is coming in. In the first place, given that these things have been spoken about more openly for some time now, why is sexual harassment still so prevalent, would you say, in the workplace?

Lisa Bell: Such a good question, because I ask myself that question on a daily basis. All of us in HR and people listening will be thinking, you know, ‘Nothing shocks me. I’ve seen it all.’ We’ve seen a lot, particularly those working in employer relations teams will be seeing a lot day to day. But weekly there’s still something that comes across my desk that I just think, ‘Why is this still going on?’

And I think there’s a couple of reasons why it’s still going on. When I first founded Tell Jane, it was interesting because I found that a lot of senior leaders, exec teams, CEOs really wanted to talk to me about our services and what we do, and showed a lot of interest. But it wasn’t a problem in their organisation.

So whilst it’s interesting talking about cases, ‘And can you believe this happened? And this case, and…’, it’s not happening in our house. It’s happening in someone else’s house, is very much the view of leaders. And it’s just not the case. So I think it’s deniable.

I think another key factor is, sexual harassment specifically has an underlying power dynamic often. There will be cases where that doesn’t always apply but the majority of times there is an underlying power dynamic. And that underlying power dynamic doesn’t have to sit within the organisational hierarchy. It could be someone with social power, right? In the sports industry it could be the sports personality. In the TV or film it could be, you know, some talent. In big corporate law firms it could be partners. Where power resides in different organisations, however it presents itself is always different. Those places are the places where the risks show up.

And often, I think, people in power need to change. And they’re also the people that are making the decisions of what to do when people speak up. So it can be quite messy from that perspective.

Robert Shore: Talk us through a little bit the new duty and then we’ll get back into some of these issues. 26 October things have changed a bit. Not quite as much as was suggested when the bill was first debated.

Lisa Bell: Yep.

Robert Shore: With the possibilities of change again in the future. But what’s changed now?

Lisa Bell: So, there’s a duty on employers to prevent sexual harassment. I’m not a lawyer but, you know, if it goes into the employment tribunal and they’re found not to have prevented, it’s up to a 25% uplift potentially that’s applicable.

And I think the idea behind it is very much to get employers more on the front foot. It’s interesting, I definitely see certain sectors that spend a lot more in our investigation side, and other sectors will spend a lot more in the prevention space. And a little bit of money spent in the prevention space, I see it across clients, multiple clients, it goes a
much longer way than just dealing with a really expensive, messy investigation, for sure.

Robert Shore: You began there talking about power. Is this the most problematic area still with sexual harassment? Is it easier to deal with sexual harassment when it’s further down the chain of command? Do you find there’s a difference in the way organisations deal with things depending on where it happens?

Lisa Bell: Well, I think that in the more junior positions in the organisation I think that HR’s really empowered to deal with it. I think the challenge is the more senior the individual is, the more of a debate there often is around what to do next. It’s cynical but it’s the reality of what we see in practice. And also, often maybe the individual, even at the end of an investigation that it’s found the case is upheld and all that kind of stuff, the individual might have certain client relationships, they might be…their power might reside in how much revenue they’re responsible for, or a technical skillset that they bring to an organisation. It could be a whole host of things.

It’s really important to be clear that that power isn’t gendered as well. Most of the cases I see, and the stats will tell us, that it tends to be senior men harassing junior women. But it’s actually the LGBTQIA community that’s most likely to experience sexual harassment at work.

Also, some of the worst cases I’ve seen have been senior women harassing junior men.

So it’s not gendered from that perspective. It’s power-related. The challenge is that often positions of power are often held by men.

Robert Shore: Is there a way that organisations can change the way they think that will help them to deal better with that?

Lisa Bell: My advice to HR teams is to create more accountability to get leaders to make better decisions once they’ve done investigations, outcomes and findings is to really – and this is cynical but it’s more effective – is to really talk around what leaders are on the hook for, what their duties are, making sure that there’s a clear understanding about the impact of the organisation’s reputation as well.

Understanding what message that sends internally to the company culture and how that can impact how people feel about the organisation. And because, whilst these
things can be dealt with confidentially, there still can be a whole host of gossip and rumour and things that sit around this. And this is often why people don’t speak up in the first place.

Robert Shore: So, obviously training is really key, and training at every level in an organisation?

Lisa Bell: Yeah. And there needs to be a very different training for the senior execs, right? To be honest, it’s not training that I would ever provide. I think it’s much better done by a law firm. It’s around caselaw, it’s understanding what they’re on the hook for. You know, there needs to be that kind of conversation at the top level.

And then there needs to be very different training that’s more practical, that’s sort of, ‘How do you nip things in the bud? How do you identify things? How do you make sure people know that you’re approachable and that they can come and talk to you?’ You know, all these things. They’re slightly different approaches at different levels. And if you can get that right and cascade it through, it’s really effective.

Robert Shore: Yeah. So let’s talk about technology and the way that technology has sort of impacted this area. And when we were talking before, we were talking about virtual spaces and real spaces, and the way that actually everybody has to grasp the consequences of actions in, say, a virtual space and what that can mean for your life.

So, how long has Tell Jane been existence again?

Lisa Bell: Seven years in January, actually.

Robert Shore: So, seven years. Tell Jane, then, is born into already obviously a kind of digital space. But are you seeing changes in the way that things are happening now? Is it getting…are people getting wiser about the consequences of sort of what they do in a virtual space?

Lisa Bell: What people forget…’cause people often think…if I asked you to close your eyes and think of an example of sexual harassment, you’ll think of something quite over…maybe in a work social setting that’s happened after work, maybe in a restaurant or in a pub or something like that. Or a staff party. You know, these are the things where we typically think sexual harassment shows up. And if you Google examples, it’ll be on ACAS or wherever you look, that’s what’s going to come up.

The reality is, is it’s often transposed into the virtual space. So it’s transposed into chat messages and on social media. Even we’ve seen cases within clients where colleagues have approached each other on dating apps as well. These add another layer of complexities. And people need to be clear around these grey areas, grey areas like, ‘Hmm, so I’ve got a private WhatsApp conversation with a colleague who is a friend and there’s inappropriate images on it or jokes of a sexual nature.’ Or, ‘I’ve approached someone on a dating app and asked for…’ I mean, the types of things we see is inappropriate pictures being sent, you know. All these sorts of things that then unravel and become quite messy to unpack, frankly, because there’s a lot of this that feels like it’s very much in the personal space. And as HR professionals we’re not really designed to get in people’s personal lives. But these boundaries are becoming very, very blurred, and it can become very difficult to manage. And you can be made aware of things that you don’t have access to.

Robert Shore: At the level of evidence of something happening, I suppose it can be quite useful in a way to have things that happen online, in that there’s often a trace of something, whereas in an after-work context often it’s what somebody says happened. But at the same time obviously it leaves this kind of indelible trace that’s really hard to remove and maybe that’s also sometimes very difficult for everybody involved as well.

Lisa Bell: Yeah. Well, I think also we’ve got to be mindful of things like AI coming in. There’s the concept of deepfakes. If people don’t understand what a deepfake is, it’s when someone’s face is maybe superimposed on an inappropriate image of a sexual nature. These things can look extremely realistic. And they could be sent around a group WhatsApp chat amongst colleagues, which the person who the deepfake’s been made of might not be privy to. But they’re aware there’s something going on. Someone’s told them something and the types of things that then come to the HR team is, ‘There’s a WhatsApp chat. I’ve not seen it but I’ve heard this.’ And that’s really tricky to deal with. You might not have access to the information. It’s great if you’ve got access. It’s on a chat function, you’ve got clear evidence. And also that’s really valuable but often that’s not the case. It’s often something that’s slightly out of reach that gets reported.

Robert Shore: So what do you do, actually, as an HR department in that sort of case? You know, what is a useful first step?

Lisa Bell: There’s so much context that’s needed in terms of what to do. I mean, I hate the word ‘it depends’, but it depends. So typically, I would start by…the person that’s come and spoke to me…and it’s a template question but it’s an important question is, ‘Thank you for coming to raise this with me. It took a lot of courage to come and speak to me. What would a good outcome look like for you here?’ or, ‘How do you
envisage this working out in a positive way?’ I’m trying to find the right words here but, you know, ‘How can I best work through this with you?’ Because I think sometimes somebody often…and some people like the word ‘survivor’ or ‘victim’. For the purpose of the podcast I’m going to use the word ‘victim’. The person that’s been subjected to this behaviour needs to be re-empowered often. Asking them these questions is empowering for them. So that’s the first thing I would do. If they want you to deal with it and they want you to investigate it and you have not got access ‘cause it’s on some private WhatsApp chat, that can be really tricky. But I would approach…I’d start with an informal chat before starting a formal investigation with whoever may be on the WhatsApp group, you know, someone…maybe if there’s a manager on there. Often there’s a manager on there. Often there is a manager that’s not necessarily participating in the chat but they’re also not preventing it. We see this on Teams chats, Slack channels, all these different chat channels that people have in work. There are so many cases we see where manager is on the chat, manager isn’t really reading the chat. Inappropriate images or comments, whatever they do, show up in the chat function and manager hasn’t said or done anything. And unfortunately, they get themselves in a right pickle at that stage, frankly.

So if there’s a manager I’d approach them. I’d approach the most senior person and say, ‘Look, is there anything going on here that I need to be made aware of?’ I’d just start the conversation there and take it from there.

If you’re not getting any answers – which for sure can happen in these circumstances – I would have very much a conversation, ‘Well, I hope there is nothing going on. And if there is, I hope that any images of the individual are removed and deleted permanently off everyone…’ You know, I’d actually do it informally in those scenarios or I would try and get the evidence.

Robert Shore: So we wanted to think a little bit also about generational shifts here because, you know, the youngest generations at the moment, I think, have a lot more education when they go through school about these matters. Are you seeing a big difference between people who are in their twenties and thirties and people who are older? And often, does having a grasp of the concept really change the way people behave?

Lisa Bell: I don’t know whether they behave differently but they’re definitely more willing to report. There’s a TUC survey – I can’t remember what date it is – but they looked at women and girls aged 16 to 24 and they were 64% more likely – I’d have to check the exact stat but around that – more likely to speak up than my generation was. I see that in practice as well, so that definitely is reflected. So yeah, I think there’s a lot more speaking up.

Younger generations – I’m now generalising – are generally better at setting boundaries around these things. I would still say it’s still prevalent. It’s just it tends to be a little bit more integrated with technology.

I also think that amongst maybe my generation they’re more likely to put up with a little bit more before they report. I think the types of reporting with my generation are much more serious cases. It really takes the straw that broke the camel’s back for them to come forward often. So maybe that gives you an idea.

Robert Shore: And the fact that people report more readily and sooner possibly means that a lot of more serious incidents might be headed off? Obviously that doesn’t stop everything, but do you think that broadly it is giving rise to a healthier culture? Is that a reasonable thing to say?

Lisa Bell: I think definitely at the lower level, yes. With the younger generation, the serious ones it’s still very hard for them to speak up. They may have been traumatized, particularly if we’re talking more around the assault space rather than the sexual harassment space. No, I don’t think there’s a change there.

If we look outside of the workplace in wider society around convictions around assault and rape and things like that, there’s so many deterrents beyond the workplace. So these experiences, if they happen in the workplace the stats aren’t going to be any different to what they are in wider society. And often HR gets a complaint that might actually not be theirs to deal with. It might be a police matter. We unfortunately see rape cases at Tell Jane, for sure.

Robert Shore: What sort of questions should you be asking yourself to understand the level of seriousness? It’s all serious but actually, who should be handling this?

Lisa Bell: Before I would ask a question, I advise all clients, all HR teams, to have a spectrum of behaviour, right? So you’ve got inappropriate jokes of a sexual nature or a bit of innuendo down the lower end of the spectrum. Right at the more serious end of the spectrum you’ve got the assault, rape, police matters.

So when someone comes and speaks to you, they might come to you with something fairly innocuous. So the initial questions, rather than being dismissive with something quite minor, I would say, ‘How did they say it? Tell me a little bit more than that. Has it happened before?’ Something we use in training, a simple thing was, ‘Somebody came and told me I looked pretty today.’ You know, earlier in my career I’d say, ‘Well, it’s a compliment. Please, have you not got anything better to do?’ And now I wouldn’t. I would never say that. I would say, ‘How did they say it?’ ‘Well, they leant down over my desk and whispered it in my ear.’ Well, there’s a very different case to deal with there when you get the further information. So probing questions, open questions, ‘Tell me more’ kind of questions. Never, ever, ever ask a ‘why’ question. A typical coaching philosophy that sits around this, but it will invoke a defensive reaction from the person speaking up. And it will also break the trust in that conversation as well. So avoid ‘why’ questions, ‘what’ questions, ‘when’ questions. Get as much information as possible. And don’t think you have to respond in the moment. Thank them for coming to speak to you. Reassure them that it’s going to be dealt with appropriately and confidentially, and explain what that means. And say, ‘This is really important. I want to have a little think about it and could we meet again tomorrow?’ And give yourself some time and space to get the right response. I see so many cases of leaders outside of HR, and HR leaders even, giving the wrong response in the moment because, ‘Oh gosh, this sounds really worrying.’ Give yourself time and space is really important.

Robert Shore: The very fact that somebody has come to see you probably means that you need to listen carefully, even if it sounds very modest. Initially you should just make sure that you get somebody to talk a bit. Because actually, if they’ve come to see you the chances are it’s because there is something that is really concerning them and that you need to hear.

Lisa Bell: Yeah. I think sometimes we forget, because we’re human in HR, we forget that it’s a big deal for someone coming to speak to us. And we think, ‘Oh well, we’re human. Of course someone…’ – I’ve heard this loads of times, ‘…of course they’re going to come and speak. Of course I will help them.’ Particularly if they’ve been sexually harassed. Well actually, it’s a really big deal to come and knock on our door or to ring us up. And we must remember that we’re in a position of power ourselves. And also, they might have had a bad experience in another organisation speaking up against these kinds of behaviours, or they know a friend that’s not had a great experience, or whatever it might be. ‘Cause there could be lots of reasons that made that really difficult. So we want to make sure they have a good experience. And that, ‘Thank you for bringing that to my attention. It must have taken a lot of courage to come and speak to me. I really appreciate that,’ is a great way to deal with it.

Robert Shore: So you say HR has power. It’s answerable to power as well within an organisation. Is it sometimes quite difficult to have a moral compass that is separate from an awareness of power relations? I mean, that is to say, to be able to really see something clearly for what it is without being concerned about the ramifications for your organisation?

Lisa Bell: I think this definitely becomes more prominent the more senior the person that’s being complained about. And this is why in the more junior roles it’s easier to solve. So yes, absolutely. It can feel like a conflict. And you know, I’m in the privileged position of being outside of an organisation, and I’m not really answerable to clients around these things. And I think that probably because of that challenge is why I do what I do as an external, frankly. I definitely feel like when I was an internal, you are balancing things. And it is often down to the individual HR person and their moral compass. And frankly, their understanding of, yes, they may understand the Equality Act, and yes, they understand the policies and procedures. Absolutely. You know, they will do in their profession. But do they understand about why people don’t come forward? Do they understand the power dynamic? Do they understand the nuances around, you know, if somebody comes and reports an incident of assault or rape between two colleagues two years’ later, do they understand that actually, the reason why there’s a delay, you know, we see a typical answer is, ‘Well why didn’t they speak up sooner?’ Well, because they’re really traumatized. I don’t think that everybody would understand that naturally, ‘cause they’ve got a big job and it’s much broader than that.

Robert Shore: One other question in terms of workforces is they’ve become more international in character. And we talk then a lot about company culture and trying to have a single culture, but often where you’re dealing with individuals who have grown up in different places, also who are still based in different places, who work internationally across borders, how easy is it to make sure that everybody understands the same thing about how one is supposed to behave in the workplace and beyond?

Lisa Bell: Do you know, that’s such a great question. I’m really glad you asked that because I see it with cases. It’s just a cultural difference. Honestly, I don’t buy that generally. I think anyone that uses cultural differences as a lack of understanding around this stuff, particularly when there’s been an incident, you know, you really need to take a step back and have a think about that.

But in terms of organisations working across different cultures and different geographies, there are different cultures around this. What we would encourage clients to do is set a company message with a global message around this, and be really clear that, ‘Yes, we have different jurisdictions and different countries that we’re working in, and there’s different bits of legislation in all these different countries, but this is our global way and we all have to work to these global standards of our company.’ It does work. People definitely understand it. There’s lots of huge movements around this, particularly in parts of Asia. India at the moment, there’s a huge shift and lots of conversations going around this. It is a global conversation, for sure.

Robert Shore: To wrap up, can I ask you for three top tips that, you know, HR departments could take on board in thinking about these issues?

Lisa Bell: Yeah. Well, I’m really conscious that all your listeners will have different budgets around these things. So let’s talk about different things you can do for different budgets.

So Tip 1, this is a free tip, it will cost you absolutely nothing. Get your leadership team to send out a really clear message around the culture that they want to create in the organisation. And part of that message is that you want a culture that’s free from harassment, sexual harassment, discrimination and bullying. And if anyone feels
uncomfortable at work, this is where they should report things. So something really simple like that, that would be my first bit of advice. The next thing you need to do is work on your reporting mechanism. So I would recommend everybody have a one-pager, and across that onepager I’d like you to have three columns. So one column is support.

And you might have your employee assistance programme details, you might have mental health first aiders. Anything to do with wellbeing sits in that support column.

The second column is confidential reporting. You can go to your manager. You can go to your manager’s manager. You can go to any senior leader. These are all the different people. You can go to the HR team. All the different ways they can confidentially report not just sexual harassment, all the other behaviours too. ‘Cause a lot of the stuff we’ve spoken about, while we’ve very much talked about it through the lens of sexual harassment, it can apply to bullying, it can apply to discrimination too. So that’s the confidential.

And the third column is anonymous. And explain what anonymous is and how they report. So that would be my next tip.

And my final prevention tip would be training conversations around what it is, how they should deal with it. I think you’ve got to build that awareness. So yeah, obviously that’s budget-depending, you’ve got different options but yep, training for sure.

Robert Shore: Well again, Lisa, thank you so much. There are, of course, lots of supporting materials on our website, including Lisa’s own new leading practice guides. So I would encourage anybody listening to this to have a look at them there, and I’ll put a link to them in the show notes. And then all I can say now is, until next time.