Employer liability and Jimmy SavileIn the week that more allegations have emerged about Jimmy Savile, the spotlight is falling heavily on what his employers at the BBC and elsewhere knew and what they should have done at the time.
Police have now described Savile as a “predatory sex offender” and clearly any legal cases that are possible will be handled by them.
But the burning issue remains: was the BBC at fault in giving Savile and other celebrities access to young girls? Did they fail to protect young people when they were on their premises and not take reasonable notice of allegations and comments that were made at the time?
Should this have been the case, the issue of employer liability arises. For example, what liability did the BBC have for the actions of its employees? What would have happened if a member of staff had blown the whistle and then been fired or forced to keep quiet about what they knew.
If this sort of activity occurred today, the BBC would be in a very difficult position legally. The equality act means that an employer is now potentially liable for the behaviour of staff and for harassment of its employees by others (such as customers, clients, or visiting DJs) if they have been made aware that it has happened and didn’t take reasonable steps to stop it happening again.
The act means employers are clearly responsible for preventing bullying and harassing behaviour and would need to have made it clear to everyone that such behaviour was not acceptable.
Best practice now is that all staff should receive information about what is acceptable behaviour towards colleagues, clients and others and should have a whistle-blowing process in place. This allows junior members of staff to voice concerns or report inappropriate behaviour that they have witnessed with no fear of being victimised – either by the perpetrator or by the organisation itself, when confronted with unpalatable information about senior colleagues or key individuals.
As a non-executive director and chair of audit committees, I often have to manage cases of whistle-blowing and there is no doubt they are difficult to handle.
My judgment is that you should start with an open mind. It is always possible that even absolutely bizarre revelations are true: the first step in the process is to understand what the real allegation is and why the person concerned has chosen this moment to talk.
In one recent case, a staff member had just received a poor review and a low bonus and other people assumed that it was a case of sour grapes. In fact, the review had been designed by the perpetrator to bully the person into silence and intimidate them.
The employee’s allegation was of inappropriate sexual behaviour, which was investigated and found to be true. Disciplinary action followed. What was even more troubling for the employer was that some eight or nine other people had known about the sexual behaviour, but had kept quiet for fear of their own jobs.
The five point guide I would therefore recommend any company following is:
1 Tell everyone what acceptable behaviour is. Use clear, unambiguous language
2 Walk the talk. Don’t say ‘Drunkenness at work is unacceptable’, but then make a hero of the head of sales getting falling down drunk when he brings in a new customer
3 Identify genuinely independent and brave people whom staff can go to if they want to report a problem
4 Investigate all issues, even those that seem trivial or perhaps motivated by personal reasons
5 When you come to a conclusion, initiate fair, timely disciplinary procedures. When those have been concluded, make sure that the principles – if not the details of the case – are disseminated widely.
Wanda Goldwag is non-executive chair of True North Human Capital, which helps companies to find both the right men and women for senior roles.
People Management October 2012