Organisations seeking to reopen investigations into past allegations of toxic behaviour should be aware of the legal risks and the fact that memories fade over time, experts have warned as the London Fire Brigade reinvestigates past cases.
An independent culture review found the London Fire Brigade (LFB) was “institutionally misogynist and racist”, with poor behaviour and abuse evident at almost all levels, including bullying targeted at ethnic minorities and women.
The fire brigade is set to hand over historical allegations of inappropriate behaviour to an independent body for further investigation, with cases going back five years.
Commissioner Andy Roe has said firefighters face dismissal if they are found to have bullied or discriminated against colleagues.
Examples of the toxic behaviours detailed in the report included firefighters putting bacon in a Muslim colleagues’ sandwich, a black firefighter finding a noose by his locker, and women being groped by male colleagues.
A female firefighter told the review panel, which was led by former chief crown prosecutor Nazir Afzal, that the threshold for bullying was so high “you would have to gouge someone’s eyes out to get sacked. Everything else is seen as banter”.
The review says lack of consequences “relate to a failing HR system, poor leadership, training and a career development system that is seen as not ft for purpose and the need for a better understanding of employees’ mental health”.
One firefighter said there was no point in asking the LFB’s People Services team for help as they were “seen as in cahoots with the managers and do what they say. They’re not objective or focused on your wellbeing”.
A survey found that 53% of LFB respondents were not confident in talking about issues that concern them at work with HR.
Recommendations made by the review include the establishment of an independent complaints service; a review of past cases, ensuring all complaints over the past five years have been managed appropriately and the correct sanctions applied; and ensuring all staff feel confident to speak up if they witness racism, misogyny or bullying.
Lessons for employers
HR and employment law experts have urged caution over reopening past investigations, especially where inappropriate behaviour has already been dealt with.
“Historic allegations can be challenging to investigate because of the impact of time on the quality of the evidence that is available; memories fade, records may not have been kept and people may have moved on to new roles or retired,” said Karen Baxter, head of the investigations and regulatory group at law firm Lewis Silkin.
“The biggest legal challenge with reopening historic issues is where someone has already been disciplined for their behaviour, but perhaps the penalty was unduly lenient or informal, or where the employer has been aware of the issues throughout but chose not to act.”
Antonio Fletcher, head of employment at Whitehead Monckton, said employers should ensure there are clear reasons for reopening an investigation.
“This may be because new evidence has come to light, such as new witnesses stepping forward,” he said. “It is important that the reason is not trivial and may have a material effect on the original finding so that it is clear that an individual is not being targeted or unfairly treated, as this could give rise to claims including constructive dismissal.”
Baxter said: “It is very challenging for an employer to reopen old disciplinary issues and take fresh action, so for that reason the focus may have to shift to the reason for the inadequate action at the time, and whether those in senior roles have been turning a blind eye to wrongdoing.”
Examine organisational culture
Organisations should consider whether there are wider cultural issues if there have been individual complaints of bullying or harassment.
“It is very challenging for an employer to reopen old disciplinary issues and take fresh action.” – Karen Baxter, Lewis Silkin
“Behaviours and comments which appear to be said in a jovial way may be the tip of the iceberg, so it is worth keeping track of any such activity that reaches HR’s attention as not always would complaints be raised formally in these situations,” Fletcher said.
Angela O’Connor, CEO of The HR Lounge, said: “Wherever there are people the possibility of toxic behaviour can arise. It is important not to make assumptions but to continually seek feedback from employees on what’s working and what’s not working, don’t rely on just employee surveys but open discussions about acceptable standards of behaviour and scrutiny of the available data.”
O’Connor said it would be wise for organisations to specify what is considered unacceptable, as general descriptions often do not work.
“For example ‘banter’ could be described by different people as ‘harmless fun’, or ‘toxic and threatening’ depending on the nature of the words used and the context,” she said.
HR should be clear that behaviour that falls below the accepted standards will be dealt with seriously, including when exhibited by senior staff, she said.
“Combatting toxic behaviour is a complex issue and cannot be relegated to the ‘too hard to deal with pile’ or be dealt with by process alone,” added O’Connor. “This is also not just a task for HR but for the whole organisation, led by leadership.”
Baxter said employees who report bullying or harassment need to be told who will see the information they provide, and should be reassured that they won’t suffer repercussions and that action will be taken. “Without these key elements, the wall of silence is likely to continue,” she said.