How do HR managers walk the tricky tightrope between pressure to enable an organisation to achieve its aims and “doing the right thing”?
There was an enormous amount of publicity in late 2021 in relation to the Yorkshire Cricket Club (“YCC”) racism allegations. Questions were raised with regard to why those on the Board did not act to stop what they knew was happening. These are common questions asked in all sorts of organisations on the receiving end of discrimination or whistleblowing allegations.
HR and discrimination cases
As employment lawyers involved in bringing or defending claims of discrimination in the employment tribunal, we are often required to closely examine and question not just the actions of senior management but also HR practices and the knowledge and involvement of HR managers in the factual matrix.
On occasion, the evidence strongly indicates that HR teams have been aware of discriminatory practices or, at best, have been wilfully blind.
Sometimes they are simply frustrated by senior managers, board members and owners of companies, and feel powerless to intervene effectively or at all. On other occasions, the witness lists at Tribunal hearings are notable by the absence of HR despite their involvement. Cases involving all the protected characteristics have these common features, but in our experience, apart from race as per YCC, allegations pertaining to sex, maternity and disability discrimination (particularly mental health issues) are absolutely rife.
The responsibilities of HR managers
HR managers who are members of the Chartered Institute of Personnel and Development are (or should be) bound by their Code of Professional Conduct.
This is an easy-to-digest set of common-sense principles, which, for example require that its members:
- Exhibit and role model professional and personal integrity and honesty at all times;
- Demonstrate and promote sensitivity for the customs, practices, culture and personal beliefs of others; and
- Champion and promote “equality of opportunity, diversity and inclusion and support human rights and dignity”.
The challenges
Privately, many HR managers will admit that they were pressured (bullied?) into carrying out the will of Directors and Board members engaged in unlawful discrimination, covering up discreditable conduct and breaches of legal obligations.
Telephone and Zoom conversations cover issues that are not safe to be committed to email. Apart from being undesirable and possibly unlawful practices in their own right, much of the conduct also expressly amounts to breaches of the Code, and members who fall foul are liable to be reported to the CIPD.
There have been numerous documented examples of HR being complicit in treating people unfairly, succumbing to bias and the overbearing pressure of Board members in case law.
How do Courts view HR managers?
Tribunals can be brutally critical of the role of HR in cases where there are glaring discrimination issues. Tribunal Judgments can brand the HR manager as being complicit with conduct which at best is in direct conflict with their professional obligations and at worst, brand them as incompetent.
Little understanding may be afforded in terms of HR trapped between aggressive Board members and their role as advisors to the Company. Equally, they are aware that the workforce invariably has little confidence that HR professionals will do the “right” thing because the employees suspect that HR will be pressured by the employer.
Addressing discrimination and corporate wrongdoing
With all this in mind, how should HR professionals conduct themselves when they become aware of discrimination or corporate wrongdoing and detrimental treatment to those that call it out? Can a HR manager of any level survive as a HR professional if they “do the right thing” where this means taking the side of the employee?
Alternatively, can they preserve their integrity or careers by carrying out Directors’ dishonourable instructions which results in being named and shamed as unethical and dodgy by Tribunals?
HR professionals frequently walk this tightrope and it is facile to pontificate and say the Equality Act obliges employers to act in a certain way, or that the Company must have a dignity of work policy and abide by it or that these are issues that must be dealt with forcefully. The reality is that these policies exist, the company directors and senior managers know about them and (often vaguely) about the Equality Act, but expect the HR manager to act on behalf of the employer, follow the Board’s instructions and make the issue and the complainant go away.
The YCC issue only brought into public focus some of the discrimination issues which employment lawyers regularly encounter in Tribunal litigation. Public naming and shaming meant that most of the YCC Board were forced out and the Club has embarked on a ‘root and branch’ review of its culture and practices.
How to move forward
Acknowledging that HR managers are after all employed by the organisation, have the title of “managers” and are subject to pressure to enable the organisation to achieve its objectives is a good start.
For those of you who are HR managers, consider how you might better manage upwards. You can survive these daily slings and arrows, maintain your integrity, and achieve favourable outcomes. The law does give you a voice and we do not underestimate the challenges you face in resisting less principled colleagues’ attempts to force you to sacrifice your integrity and risk your career. Ensuring you have an audit trail of your advice means that if the wheel does come off, there may be a get out of jail card available for you.
Your less scrupulous colleagues may also need to be reminded (on an email, not a cosy chat) that they may end up having giving evidence in a Tribunal; a court of law.
It is humbling to have to choose between being dishonest or incompetent. Within this context, self-preservation is a basic instinct, listen to it! Your own instinct will be to “do the right thing” and if you ensure that your own actions are objectively justifiable and make sure that these are recorded, that will go a long way towards protecting you and your reputation.
What a HR Manager isn’t
Of course, we must recognise that each of you will have due regard to your own hierarchy of needs, starting with keeping a roof over your heads. However, it is never HR’s role to cover up evidence of criminal or discriminatory conduct and go to jail or have your reputation irreparably damaged.
Neither is there any credit in being complicit in causing damage to the wellbeing of other people and thereby putting them at risk.
Those asking HR managers to do so are not friends or even decent colleagues and the likelihood is that when the chips are down, they would be more than willing to let you “carry the can”. You after all are the HR expert guiding them!
Get professional support
In practising in employment law, when an HR manager seeks our advice in this sort of scenario, we recognise it is problem-solving with high stakes. Our objectivity strips away the baggage.
Like all problems there are always solutions. Sometimes you will not like those solutions, but there is always an end in sight, and you do not have to fight these battles on your own and without support.
For HR and employment advice, please get in touch with our team.