The Work Agenda 2026 podcast series: Episode 01 – Navigating a respectful workplace culture

Businesses are facing challenges in a modern work environment which is increasingly multi-generational and diverse. Employees are more aware of their rights and seeking to hold employers accountable for their actions and the actions of other employees/third parties. Using a case study to guide the discussion at The Work Agenda 2026 conference we shared practical solutions and explored some of the issues that we are seeing employers grapple with including sexual harassment (a year on from the introduction of the preventative duty), neurodiversity, divergence in socio-political views and speak up culture.

This episode is part of a mini-series covering the topics discussed at The Work Agenda 2026 conference, we hope you enjoy listening. Remember to share with colleagues and if you do have any comments, we would love to hear them.

Transcript

I'm Lucy Lewis and thanks for tuning in to one of our live podcast recordings from the Work Agenda 2026. In a modern, multi-generational and diverse workplace, employees are increasingly aware of their rights and ready to hold employers accountable. During one of our breakout sessions at the conference, Bryn Doyle, Lucy Hendley and Shalina Crossley shared some practical solutions to navigating a respectful workplace culture and explored issues including sexual harassment after the introduction of the preventable duty as well as neurodiversity and how to have a really positive speak up culture.

Welcome to our session on navigating a respectful workplace culture. I'm Shalina Crossley, a partner in the employment team.

Hello, I'm Bryn, also a partner in the employment team based in Manchester.

Hi everybody, I'm Lucy Hendley. I head up our client training team, so responsible for our training function and I'm a workplace mediator.

So, workplace culture is a key priority for businesses. And that is because it impacts employees' experiences in the workplace, which in turn impact things like performance, retention, recruitment, bran, and it's a key issue that we're seeing really at the top of our clients' agendas at the moment. And since 1986, we've had the prohibition on sexual harassment in the workplace. But the legal landscape has really moved on and changed since that time. There is increased protection for employees now with the duty to take steps to prevent sexual harassment in the workplace. And we're seeing a further extension of that, which will come into force in October, with the duty to take all reasonable steps. And we can see that the law is really changing in this area to expect transparency, openness in businesses, an expectation that things will be investigated, looked into, and things won't be swept under the carpet. And you can see that in some of the new changes in the Employment Rights Act.

So for example, the prohibition on NDAs in the workplace, which is going to come into force. There may be some exclusions, we're yet to see, but really the trend is that people shouldn't be silenced. There should be a place for people to speak up. And nowadays we're seeing people speak up not only about sexual harassment issues, but really much broader issues, issues relating to neurodiversity, sociopolitical views, political views, and for employers that's really challenging to navigate that in the workplace. And so in our session today, what we want to do is try and explore some of those tricky areas on how to deal with somebody who raises these types of issues in the workplace. And we're going to do that using a case study. Lucy, I think you're going to introduce the case study for us.

Yes, absolutely. this is part one of our case study and not something I think will be unfamiliar to many of you. So this is Tanya. She's been with the business for, let's say, just over a year. You know her. You've met her on several occasions previously. She is neurodivergent. She's shared that with you, and you've also put some adjustments in place for her since she was first recruited. Now she comes to see you following a very large internal event that was hosted for one of your very important and long-standing clients. She tells you that during the course of the event that night a senior colleague made her feel extremely uncomfortable. There were some nonverbal behaviors staring at her, looking up and down, there was an element of him putting she says his hand on her shoulder in what she says was a suggestive way and there was a verbal comment as well where she was introduced to a client and he referred to her as his newest shiny recruit. She comes to you, and I think we have a Slido that we're going to ask you on this because one of the things that she's concerned about here is confidentiality, so she wants to keep this confidential. First question to you then is, is that the right thing to do? So you only get two answers here. You don't get a maybe and you don't get a depends, which is an answer we like to give generally. So let's see where you land on that one. 
Okay, interesting. And I suspect there'll be some qualification that we give here around what we're talking about when we mean confidentiality because this is such a common scenario, Shalina isn't it? I mean, I know from all the training that I do, even with managers actually, they frequently say, look, someone has come to me, they've shared this with me, but they don't give me permission to share it with anyone else. And that puts you in a really difficult position. I think for a manager, it's easy to say, go to HR. And we would always say, do that. What do you do if it's HR?

I think that's really interesting. I'm sure many of you in the audience have been in this situation where someone says, can I tell you something off the record? Or I'm just going to tell you this, but I don't want to go formal. And quite often, many of you will say, I can't unhear things, and quite rightly so, because you can't. So I think, Lucy, you picked up on this point about confidentiality. I think that's really key, a key to understand what the employee is really asking you to do, because with the duty that we currently have, the duty to take steps to prevent sexual harassment; if you do nothing with that information, are you fulfilling the duty? Perhaps not.

However, you've got the ECHR guidance, which in a way helpfully says, if somebody's asking you not to take any action, you ought to respect their wishes. It also says you should try to keep things confidential as far as you can. But there is a balancing exercise to be done, because it might be that you and HR have seen there might be a pattern of behaviour, someone's raising a concern about the same person or in the same team. And in those circumstances, you might have to say to the employee, I'm really sorry, but I can't because I've got a duty of care to others in the business and I've got to take some action. But we will try to set a framework for this process where we try to keep confidentiality as far as possible. So in a limited way, maybe you limit the circle of trust, maybe it's possible to anonymise things. So I think there is a framework that you can try to minimise the number of people that know about things, but there are certain circumstances in which I think you definitely have to act. And certainly, with people who are in regulated businesses, actually there might be a positive obligation to act.

Yeah, I think that's right. Bryn, one of the things that I often find is that people get confused with anonymity and confidentiality. So sometimes someone might say, I don't want my name in this at all. Is that possible?

Yeah, and it's really difficult and generally speaking in my experience with the tribunal it's very very difficult to get a scenario where the tribunal would allow you to anonymise a witness statement or a witness evidence or whatever it might be. I've had it a couple of times in cases whereby for whatever reason a client has wanted to anonymise a statement that they've taken as part of an investigation or something like that. The problem with it is it doesn't give the person against whom the statement is being made, the ability to be able to respond to that. And sometimes that person needs the ability to be able to respond. It's natural justice to be able to say, well, you give an example. 

I did a case once. It's not about harassment, but a case where an individual was alleged to have rung an office and alleged to have threatened to firebomb the office, as the was doing. And they took the investigation and anonymised the notes and so on. And the individual said, the person that the allegation was against, said, well, how did I know who they were? How did they recognise my voice? I wasn't given the opportunity. So it's very difficult. So getting the difference between anonymity and confidentiality is really, important. I think being really clear with everybody right from the very start, look, it is confidential. That means you are not allowed to talk to anybody about this outside of the of the circle of trust that Shalina's referred to there. That's one thing, that's confidentiality. But in terms of anonymity, it's very, very difficult to promise anonymity and I would always advise the starting position for me is advise against anonymity unless it's very very exceptional circumstances there are some but unless it's very exceptional circumstances.

I mean, I think you raised a really interesting point Bryn in terms of forward looking because what I've seen more and more is in processes names in transcripts being anonymised so that when you get down the road to litigation actually when you do disclosure for example the disciplinary manager has got anonymised statements even though they know who the people are but it means that when you get to tribunal those names aren't out there in the public domain necessarily so it's definitely something we're seeing more of its definitely something to think about.

Good. Okay, so let's go on to the next part of the case study, shall we? So, have the discussion. Let's say that you're normally in the HR team and you've raised this issue with your CEO and she, the CEO, urges you to try to get Tanya to have a facilitated conversation, perhaps with a senior colleague or something similar. What the CEO doesn't want you to do is necessarily escalate this straight away into a more formal process. She's quite keen, the CEO, to avoid it blowing up. And in her view, this particular senior colleague that she wants you to use for a facilitated conversation has a good reputation trying to resolve matters. And she also thinks that the allegations are misguided. So, next slide, our question. What do you do? Do you escalate it as a formal complaint? Or do you see if Tanya will agree to a facilitated conversation? What do we think?

And this one's a bit of a hot topic, isn't it, really? Because we are definitely seeing far more interest in these facilitated conversations.

100%. And the advantage of a facilitated conversation, we'll talk about those in a minute, there are disadvantages as well. And I think that's sometimes the nervousness of having a facilitated conversation. Okay, fine. So we know that the guidance and Shalina has already referred to this that from ACAS and from others actually is that try and informally resolve workplace disputes. And so on the face of it, I think there's a reasonable argument here for a facilitated discussion or facilitated conversation. But that said, there are going to be certain circumstances where this facilitated conversation just isn't appropriate, just doesn't apply. So let me ask you, Shalina, then, would you recommend doing as the CEO suggests here having that facilitated conversation or would you would you kind of go formal as it were?

I think it really depends. I think you've got to play it by ear. You've got to go with the sort of feeling that you get from the employee. Do they want to raise this formally? Or actually, do they not want to take things forward on a formal basis and take your lead from them? I certainly think there's nothing wrong with having a facilitated conversation. But I think if you get a clear steer from the individual that they're not interested in that, I don't think I would push it. But if you are going to have a facilitated conversation, I think it's actually really important to think about the framework of that before you suggest it, and be ready for the answers. How am going to sit in a room with that person? Who are you going to have? Are you going to have an external mediator? Is it someone within the business? Will they have pre-calls with me beforehand? What will be on the agenda? What if it doesn't work out? What are the next steps? So I think it's worth doing a bit of planning before you then go and suggest having the facilitated conversation. But I think nothing wrong with suggesting it but do take your lead from the employee and if there's real pushback or you get the sense that they really want to deal with things formally, I would move into the formal process.

Yeah, I think that's absolutely right. And so let's have a kind of preface to it before, Lucy didn't know, but can you just give us a few of the pros and cons of that facilitated conversation?

I'm biased, I'm entirely biased, so I'm definitely going to be in the camp. I always think most things in life can be resolved with a cup of tea and a conversation, right? But we have to recognise that there are going to be some situations where we're too serious for any kind of mediation or facilitated conversation. This one isn't, as you say, Shalina, this isn't the most serious that we've seen and sadly see. But I think here the benefit would be if you can persuade Tanya to sit down and have that conversation, you could actually get on top of this quite quickly. You could resolve it relatively simply. And actually, it's much less formal. It is just two people with one other person in the middle helping them have that conversation. 
One of the things that I found really powerful actually about those conversations, which you don't get with a grievance or a grievance outcome, is that you are able to explain to the other person why you feel so strongly about what happened. So even if you don't agree with exactly what happened, even if the factual scenario is not entirely clear, you can actually say, when you did X, this was the impact on me. And that is hugely powerful. The blocker, I think, though, is getting people to agree to it. Because actually, in the same way as people, as we know, are sometimes skeptical about involving HR at all, imagine then telling them, you want to do remediation. That can also be a problem. Go ahead.

I don't want to be the voice of doom. Those who know me, I'm not the voice of doom. But I don't want to be the voice of doom. But there is a risk, isn't there, in terms of the tenure in this scenario says, I felt like I was forced into going down that route. Have you had that? How could we deal with that or try to mitigate?

I think that comes down to Shalina's point which have you set it up properly? So you need to be really clear that this is voluntary I have had situations where someone has said and they've walked into the room and said I've been told I have to be here and there's an alarm bell for me there because that's not going to work apart from anything else. You're not going to get their trust, so you need to be careful in the setup of it. There is a risk I think sometimes it does happen where people change their mind and and you have to then be prepared for a situation where someone says ‘Well, you told me there was no other way. I had to do this’. And actually, you didn't really take my complaint serious. Look how you were going to deal with this very serious allegation I'm making. All you offered me was a facilitated conversation.

Yeah, and I have had that before, a challenge from solicitor acting on behalf of the employee that says you clearly didn't take it sufficiently seriously because of the fact that you had the facilitated conversation. I think the argument back to that is, the ACAS guidance is quite clear about that, isn't it? And there are going to be certain circumstances where it isn't appropriate, as you've rightly said. But in this particular scenario for me, I think it is appropriate.

I think it is and actually the confidentiality concern is also really good because actually she can now have some control over this process if it is a facilitated conversation.

I also think in terms of the outcome, sometimes, you if you're doing a straightforward disciplinary process, you might not tell the complainant what the outcome of that process is. And they're just left thinking, well, did you take appropriate action? How do I know that you took it seriously? Whereas actually in a sort of facilitated conversation, you might be able to share some of the outcomes. So, for example, you know, is there going to be some training or, for example, things that I think we're now seeing, you know, people being asked not to drink at social events, things like that. And actually, that can then give the complainant real confidence that actually there are some practical steps that are going to be taken to safeguard them. And that again, I think, goes back to the duty. You are then discharging your duty to take reasonable steps to prevent things happening again. So yeah, I think they can be a really, really useful tool.

It's an interesting point, isn't it, about whether or not you could argue that not offering a facilitated conversation in a situation like this is not taking all reasonable steps. I would quite like to try. Obviously, we don't need to quite yet. At some point in the future, we will need to test that in the Tribunal to say, we offered it because that is all reasonable steps. That was a step that we felt we had to take.

And I'm sure many of you have policies which quite clearly set out an informal process first, so it's quite helpful sometimes to rely on your policy documentation which says, this is baked in in our process. OK, so the complainant says, no, I want to deal with this formally, not interested in this facilitated conversation. What do you do? They say, I want you to appoint somebody external. Do you do that? Yes or no? 

That’s really interesting. I thought we were going to be 100 % on internal, but no. Shifting the balance a little.

Really, really interesting. I mean, there's no right answer to that. I'd be really interested to talk to some of you afterwards to say, know, why were you so in favour of an internal investigation? But, Bryn, have you come across this issue before where somebody says, I really don't think you should be dealing with this internally, like everybody will be biased and nobody can be impartial, you must appoint an external investigator?

Yeah, definitely. And I guess we come at it as external providers of investigation. So we kind of see it from this perspective. But there's no legal obligation on an employer to do an external investigation. And in actual fact, I quite like the fact from an employer's perspective to have control, you know, with either investigation. And often in these situations, it is easy for the employee to start to dictate how that investigation process runs. I'm a big fan of ahead of terms. I'm a big fan of internal investigations, making sure we've got really clear methodology what you're going to be investigating and part of that is almost communicating to Tanya in a scenario or whoever it might be, the employee in the situation to say we're in control of this. But no, there is no legal obligation to appoint an external.

So are the kind of factors then, if you're sort of talking, like you're thinking about the pros and cons, you know, what factors do you take into consideration when deciding whether you should go external?

Yeah, mean, there's a raft of things. Cost is often more. And I think we have to be realistic to say that sometimes an internal investigation is significantly cheap, but not always. And often there's a time commitment that if an internal investigator needs to be appointed. There is, I think, sometimes a perception that an external investigator is perhaps more independent. And we have to be really clear to differentiate the difference between being truly independent because of course if an external investigator is being paid by the employer there is always a challenge that says well they're not truly independent. So there's that challenge there. There are real benefits in terms of if there is a formal process that follows on from an investigation where that's a disciplinary or a grievance outcome which subsequently ends up in a claim or something it's useful to be able to demonstrate to a tribunal to say we took it seriously and we appointed an external investigator and they were as independent as we could make them to be. But I think it's horses for courses in many cases, isn't it? As to which is the right one to do. 
We obviously work with clients to make a decision as to which is often the best way. The other point to say is sometimes internal investigations are better because they know the facts better. So it might be that it's about a particular issue that actually the client is the best place to investigate, is the best place to look into because it's quite specific about the product that they make or the thing that they do or whatever it might be. For cultural-based investigations, I think that's less of an issue.


Yeah, and Lucy, what are the kind practical issues that you've seen with clients when they've appointed somebody external?

So I think it comes back to your point around control. I think sometimes when you have an external person involved in that way, it's easier for the complainant to almost expand the scope of the investigation to bring other things in. And then it's more difficult for the external person almost to rein that in. So you can potentially lose control. So I think you have to be very careful about those heads of terms. What is exactly in scope and what are you asking the investigator to do?
I think the other thing we're seeing so much more now is this idea of reasonable adjustments, where during an investigation process itself, there will be a request for an adjustment in the actual meetings. And I think at that point, you need to make sure that you have clarified with the investigator what those adjustments might look like, but also that they're coming to you to get that kind of sign off on the adjustments, I think. It probably also then means you have to have some kind of consent from the individual to say, I'm happy for you to disclose my medical condition to the investigator. It's not going to be a full defence because we're talking about sensitive personal data, but it goes a long way to protecting some of the data problems.

And that's an interesting point, Lucy. We're going to go on to talk about adjustments, which we're seeing more and more in investigations. But I think the other point that I was going to make is that recently I did a case where the subject matter involved dealing with privileged and without prejudice communications. initially the client said, well, let's go external for this. And actually, we reflected and thought, actually, if you disclose the content of those privileged communications or those without prejudice communications, you're then losing the ability to rely on the privilege. And so actually, for those purposes, it made sense, therefore, to keep the investigation internal, but then have us advising the internal person through the process. So there are lots of factors, I think, when you're thinking about internal, external, and there's definitely no one size fits all.

Yeah, just picking up just very quickly on that point about having the running the two track of having the investigation in a bubble on its own almost and then having the advisory side separate, even if you don't go external, I always think it's quite sensible to try to separate the two. So one is advising on the process, if you like. How do we deal with this person because they're off sick? You know, they're challenging because of X, Y and Z requests for flexible work, for reasonable adjustments, whatever it might be. And then the investigator is just there to do the investigation.

I like separating those two things out. think that works. Whether that's internal, external, either way, think that works quite well.

Yeah. And let's come back to this point about reasonable adjustments, because I'm sure many of you, I've talked to many of you who have said, this is the thing that is coming up so much, both in the workplace more generally, but particularly in investigations. And I think this is a really, really tricky thing to navigate.

And I think that what we're seeing even more perhaps is adjustments in the space of neurodivergence because you know very often for people who have no experience it's very difficult to know where the reasonableness line sits. So we thought we'd bring that into our case study. So you are going to proceed with an internal investigation and you appoint a manager from a different team. And as part of that process then Tanya does insist on certain adjustments and particularly what she's saying is because of her ADHD, she wants all questions to be received in advance of the investigation meeting and she wants to record any of the meetings that she's involved with. So very specific adjustments and not uncommon, I think. I come across this much more in a recruitment context. So, Bryn, people will often say, won't they, can you please send me your interview questions in advance? Because actually, for many people with ADHD, it can be quite overwhelming to have the stress of not knowing exactly what's going to be asked on the day.

Well, before we go there, shall we? yes, let's do that. Yeah, let's find out what you all think. Should we agree to both of these requests that she's made? Do we give her the questions in advance only? Do we give her the recording only? Or should we just not agree to any of these adjustments? 

I think this is one of the most tricky areas to navigate. I really do.

I agree. And I think from what we can see there, it's questions in advance seems to be most people are saying give questions in advance.

It's a bit more straightforward, isn't it, as a request?
 
And the recording, I think that's really reflective of a nervousness around recordings. I think that's a really commonly held view.

Yeah, just picking up then on the questions in advance, for me, you've got to think about the purpose of what are you trying to achieve with your investigation here? And by giving Tanya the questions in advance, does that impact in a negative way versus what potentially might be a reasonable adjustment for her and obviously the obligation of the employer to comply with that reasonable adjustment? In an investigation like this, I don't necessarily have a problem with providing the questions in advance. There's a lot to be achieved by not providing those questions in advance. think that's different, for example, than in a disciplinary investigation whereby you might want to be getting to the bottom of a particular set of circumstances and you don't necessarily want to tip off the person that you are going to speak to. But I don't think that's the case here with Tanya. And so for me, on balance, I'd be thinking, well, I don't actually have a problem with her knowing the questions. And also the reality is in the first interview, investigation meeting with her, a lot of these questions are going to be open questions anyway, aren't they? They're going to be questions about, tell me about what happened and tell me about, you know, as best you can remember what was said, what was done, you know, how that made you feel, sorts of things. The reality for me is I wouldn't be taking the risk on not complying. It's also probably the right thing to do. I can't see that if any subsequent disciplinary action, going back to your point about thinking a few steps forward, if subsequent disciplinary action is taken against somebody as a consequence of this, has that made it unfair for the person that that disciplinary action is taken against? And I don't see that that would be the case.

I mean, it's interesting because would we say the same in respect of the person accused? Yeah. Because actually in that case, are you tipping off that person so they can get their story straight before they've met the investigator? So, you might take a different approach, which is interesting.

I wanted a where there was obvious collusion between and the employer in that scenario did provide the questions in advance and the answers to the questions were so similar, so exactly similar that interestingly enough that the disciplinary manager disregarded the answers that they gave because they were so similar and the circumstances were so specific that it almost backfired on the individuals. So in a strange way, giving them the questions in advance actually worked for the employer. I'm not suggesting that's what you should do, by the way. But it was a really interesting situation. But for this one, think for Tanya, I would give her the question.

I mean, think more broadly when you're faced with requests like this, I think what's really important is to go back to the legislation to remember what reasonable adjustments are designed for. So they are designed to alleviate particular disadvantage. So in thinking about it, so therefore I think you need to have a real understanding of the person's underlying condition and their particular symptoms because not everybody who's got dyslexia, ADHD, dyspraxia will have the same symptoms. So it's really about, you know, what is it that they find difficult? So, for example, is processing difficult? And some people find it more difficult to process written information than verbal information. So that's a key point, because if in an interview it's verbal and they're able to process that information, then actually do they need the adjustment?

But actually, if you're in the investigation meeting going to give them document after document and say, what do you say about this document? Well, that might be really overwhelming for somebody who finds processing written information difficult. So I think it's really important to tailor. In an ideal world, and I say this with a sort of pinch of salt because we've all burnt our fingers with OH reports, but sometimes you might have enough time to get some further medical advice and be really specific about, you know, what is it in the investigation that you're doing? What is the impact upon that person and what challenges will they face as a result of their condition and what adjustments ought to be made? And then it's for you to make an assessment about whether those adjustments are reasonable or not, taking into account some of the things that we've talked about, will it tip them off? Will it mean that actually that will impact the integrity of the investigation? So I think sometimes it's really tempting to, when somebody says, I need this adjustment to say, OK, fine, because we're quite nervous about this, and then you might bring a disability discrimination claim. But actually, going back to basics again and just saying, well, what is it that you find difficult? And let's try and come up with a solution to help you in that particular circumstance.

I think some employers do get nervous about directly asking an employee to almost justify why they need the reasonable adjustment, but I have no problem with that. I think that's an entirely reasonable question to ask, as long as you are genuinely trying to understand the problem in inverted commas and whether or not it's solvable by making that adjustment. 

But that's exactly the point, isn't it? It's that conversation that you need to have. And sometimes the answer is not yes or no. Sometimes it's somewhere in the middle. I mean, the recording is a bit different. mean, recording is going to be just a minefield going forward, isn't it?

It's really interesting that because I saw many of you nodding in the room while I saying, know, this is a contentious issue and there's something that makes you feel a bit nervous about it. But actually, why is that? Why do we all feel so nervous about it? Is it because we think that it will inhibit people from telling the truth or giving a full account? Is it because people are nervous that they might say something wrong? But actually, might that be a good thing for managers because they might prepare better? And then sometimes actually you can just alleviate the that you get when you provide the employee with the written note and they say, that didn't happen. I didn't say that. And you think you definitely did say that. And so you then get this sort of annotated notes where you say, well, I don't think you said that, but you're saying that. So then what does the decision maker do? Take into account the comments that are made on the side. So actually, I wonder whether we ought to be less sensitive about recordings. Again, I sort of just drop in the regulatory point because sometimes, you know, we're finding more and more now that employees are taking covert recordings. So I think if you are going to say that there aren't to be any recordings, then you ought to be really upfront about that and make sure that no one is taking a recording because actually down the line tribunals, if there is relevant evidence, they will hear it regardless of whether it's been taken covertly.

Yeah, and I definitely am seeing more clients actively doing the recording. A couple of clients who routinely now do that recording and they're upfront about it with their employees.

Yeah. So what is the next step in our case study?

Okay, so despite the fact that we've given brilliant advice, we've decided to ignore our own advice and we've decided that what we aren't going to do is to give her the reasonable adjustments and because we don't want it basically. In advance of the meeting though, Tanya telephones us to say that she's not well enough and she's been experiencing some panic attacks and can't face the meetings. We reschedule the meeting for her for in a week's time and while she agrees for it to go ahead, she then refuses to turn a camera on at the meeting. And this is certainly something we are seeing an increasing amount of, particularly where investigations and meetings are taking place online, obviously. But we've made an assumption here that we're kind of doing this process online. But for the purposes of this, she's refusing to turn a camera on. So how do we feel about that? Let's have a vote on it, shall we? camera on or camera off. So should we be saying to her you have to have your camera on or it's fine to have your camera off?

I'm seeing this issue arise just on normal meetings and then people are saying, oh no, I suffer from a particular condition and find it difficult or I feel anxious and managers then find it really difficult to sort of engage and find out what's going on. So I think this issue is coming up more and more.

It is. And I think it comes back to the point I made before about sometimes an employer feels a little bit afraid about challenging and asking this question. I have no problem in asking the employee to demonstrate why they feel that they need it. you know, and in this particular scenario, Tanya said that. And I think we can all agree that in an ideal situation, Tanya would have her camera on. Lucy, what in your experience of dealing with a lot of these scenarios, what are the advantages of having the camera on?

So I mean, the problem with having the camera off, I think there's a number of problems actually. One is that when you look at what you're trying to achieve in this process, you're trying to get as much information, evidence to help you in this investigation. And evidence isn't always in writing. And sometimes it will come from actually what you see. And I'm not a big believer in body language. And I don't think it's always entirely accurate. But I do think there is information you glean from being able to see somebody. So then you can actually get an idea of their tone, the context little bit more. And I also think for me as well, it's about rapport. It's very difficult to build trust with somebody if you don't have their camera on. And if you don't have the trust, they're not going to open up and they're probably not going to answer your questions as effectively as I think they would do if the camera was on, to be honest. I mean, there is a little bit of me that gets a bit nervous about it from the sense of security. I mean, look, we all know that whenever you do anything online, you don't know who else is in the room.
And to be fair, somebody could be lying under the desk and you can't see it on the camera anyway. actually, if the camera's not on, you've got no idea what's happening in that room. I can see why it's that even. But absolutely, think for me, I'd really need to know what the problem was and actually, would it be better in person, perhaps? Or is that actually part of the problem? Because we know sometimes online actually can be easier for some people.

Yeah, absolutely.

And if we insisted on if we said no, must have it on, what are the for employers?

Yeah, I go back to the same point, which is what is the purpose of the adjustment? And then so it's almost like you need to have a table. Like, why do you need this adjustment? And then why do we think it's reasonable not to permit that adjustment? So then picking up on the points that you raised, Lucy, I would be saying, well, we won't be able to tell who's in the room with you. We won't be able to, you know, get a full context of the impact upon you of this matter. We won't be able to tell whether you're upset or not, whether we need to take breaks and pauses. We think that this will impact the integrity of the investigation. I think you've got to, in order to demonstrate then that it's reasonable not to implement that adjustment, you've got to have thought about it properly. Because if you don't then I'm sure that one of the claims is going to be they failed to make this reasonable adjustment. It was reasonable to make it because this was my disadvantage. And so, we'll end up with a reasonable adjustments claim.

I've found, particularly in tribunal litigation, as long as an employer can sort of stand over the decision that it's made, so as long as there's some sense in the decision that you're making, so in this one, no, we insisted that she had the camera on for the following reasons. Generally speaking, I don't find that the tribunal will criticise an employer for doing that, as long as it makes some sense to do it. So think we can be, employers can be a bit bolder in making those. Back to the point they made before, just because somebody say, that there needs a reasonable adjustment doesn't mean that the employer should automatically go crikey right okay let's just do it. think particularly in investigations I say this whenever I talk to clients it's about this is our investigation we are we are in control of this investigation it's not being driven by you the employee whatever that situation may be I quite like sort of wrestling back some of that control.

And I'm a massive fan of a paper trail. Do your homework in the background, like set out your reasoning, have an internal note. You've addressed your mind to it. Tribunals want to see that you're addressing your mind to it. And, you know, when in your emails back to the employee, explain why you've taken a position. Sometimes I think, you know, there's a real nervousness to say why you've taken a particular position. And actually, it's better, I think, to be transparent because I think the tribunal will be on your side more.

So moving on, you've concluded the investigation and the investigator has found that there really was no harassment. Obviously, Tanya is massively disappointed by this. And you communicate to Tanya and then the following day you learn that she has posted a video of herself on social media sitting at her office desk with the following wording coming across the screen. So, obviously, not great from a brand perspective. And the manager who investigated the complaint sees this video and says, you've got to take disciplinary action, she's got to go, this is ruining my reputation, I can't believe this has happened, I'm going to bring a harassment claim. What on earth do we do now? So, what would you do? Would you take any further action? Formal disciplinary process?  Formal, informal conversation, or just don't do anything.

And again, I think this issue again is coming up more and more, you know, with people feeling it's part of this sort of speak up movement, isn't it? Like, why should I be silenced? I, you know, I worked on this case the other day where someone was saying, I'm the victim, so I should be able to talk about it. And I've had to be away from the office. So I should be able to tell my team why I've been away from the office. And on the one hand, you sort of get that, don't you? But on the other hand, you're putting the accused in a difficult position. And in this particular case, they've been exonerated. But even if they hadn't been exonerated, let's say for example they'd have got a final written warning, is it appropriate to share that information more widely with the team? You know, of course it isn't. So I think this is a really interesting one. And Lucy, what would you do?

So I think this was quite tricky because, mean, again, you might go, well, Lucy, you would have an informal conversation, wouldn't you? Because that's how you deal with things. But actually, there is a point here which you do really need to address. And I think you're balancing here the risk, of course, of victimisation because anything we do against her now, she will say, you're only doing that because I raised this complaint about discrimination in the first place. So that is a big risk. So I think maybe my starting point would actually be, look, can you talk to her and tell her to take it down? because in the very least that's some damage limitation. So I think that's your starting point. For me then I would go, right, what did we tell her? Were we very good at saying the fact of the investigation, the content of the investigation was confidential and it's a disciplinary issue if you reach that confidentiality? Did we do that? Let's hope we did. And I probably would also then want to really look at our grievance policy, our social media policy. Have we got the appropriate guidance in their managing expectations of our people so that they know what is covered. This is ultimately a public statement and regardless of how she frames it that's what's happened. It has caused damage or could cause damage to this manager so I actually think I would look at starting some kind of disciplinary process, but I would be really clear it is because of what you did it is not because of the complaint about harassment.

And it'll be really interesting, I think, to see where we come out on NDAs because the whole idea about NDAs is you shouldn't be silencing people. It will be interesting to see what the actual framework and what the exemptions are, because will they apply in this sort of situation, or is it just about saying to people that you can't sign a settlement agreement that prevents you from talking about what's happened? In that context, with the direction of travel, it might be actually that in the future we're taking quite a different approach to this kind of thing distinguish this case on the basis that, you know, it's not that she's telling her best friend or her, you know, her colleague in confidence. Actually, what she's doing is putting something out there in circumstances in which her complaint hasn't been upheld. It's a public statement, you know, kind of impinges on somebody else's reputation. So I do think that the feeling and the feeling about these sorts of issues is going to change in the next few years. That is definitely the direction of travel.

Yeah, I totally agree and I think what we would have advised even two or three years ago is probably different from what we'll advise now. from what we'll advise. And I'm here. mean, I am the harbinger of doom, obviously. And so therefore, I probably would be taking disciplinary action against her. And for me, what I would be doing is I would be making it very clear this is actually nothing to do with the outcome of the investigation and everything to do with the fact that it's confidential. So you treat it in exactly the same way as if, for example, she had put something on social media about, I don't know, companies results which haven't been published or something similar to that, something sufficiently confidential that you wouldn't expect an employee to disclose in the public domain and treat it in exactly the same way.

Yeah. Now, just taking it one step further, assume then that the alleged inappropriate behaviour came from a client at the social event rather than a senior colleague. Are we still obliged to investigate? 

I thought we were going to get 100%. Not a right to do it. Really interesting. Really interesting. What would you do in this situation?

Well, you're going to look on what you've got already, think, like how much have you got from witnesses? How much have you got from her, from anybody else, from the person that is accused? But you're always going to want to try and avoid bringing a client into this kind of investigation if you can. I think, it's about a reasonable investigation. I'm afraid that word is always not terribly helpful. But actually, in the circumstances, do I need to get more information from a client? Quite possibly.

And what about the reasonable steps? And the fact that that's changing. Bryn, what do you think?

Yeah, and where we are right now will be different to where we're going to be again in six or twelve months or eighteen months’ time. And that's an employment judge, was a regional employment judge actually, that was speaking to just before Christmas to say how is the judiciary, are you going to differentiate between the obligation to make, to take all, to take reasonable steps now and then all reasonable steps and the answer back was we don't really know. So the judiciary, so if the judges don't really know then it's going be very very difficult for the rest of us as practitioners to try to understand. But I do think that not doing it really exposes a business in this situation. And what is going to be really clear is it is not going to be a defence to say, I didn't want to impact the relationship we had with the client. That won't be a defence at all. There might be other reasons why you wouldn't speak to the client. You might have enough information already, for example, and that might be OK. But I'd be really nervous about just relying upon that, think, and certainly I wouldn't be relying upon, we can't impact upon the relationship with the client.

And I think you've got to look at this in the context of all those steps that you took when thinking about the duty to take steps to prevent sexual harassment. So the risk assessments, the, you know, did you amend your retainer letters, your notices for visitors, things like that. And if you did, then actually it would be completely inconsistent to not take any kind of action at all. And I absolutely appreciate the sensitivity with involving clients, but you might look, like you said, Lucy, for other evidence that you have, other witnesses. But I think that if you did conclude that the conduct happened, I think you've got to take some steps. So it might be that you're saying to your client contact, this is our finding. Now, it's based on the information that we have. However, we would ask you to comply with this code of conduct that we have or something along those lines. But I think it's going to be increasingly more difficult not to take any steps at all.

And one thing I am seeing, which might be useful to give some consideration to, is the way you have a client that you are working with and you have a contract with them, to think about what you put in your contract with that client, with that third party, to talk about, not only is it a, you'll comply with our policies, procedures, whatever it may be, but also in terms of, if we ask you to provide us with information, you will do so. I've even seen, not quite drafted yet, thought about putting some kind of third-party liability wording in there that says, know, if we get taken to tribunal because of something that one of your employees did to one of our employees, you will indemnify us for the loss that we suffered. Which is an interesting area - that operation that can be quite difficult, can't it? Because there might be a situation where it's just not appropriate to insist on a client that you do that. But it can be difficult and it's certainly something to give some thought to.

I’ve seen protocols actually like how we will deal with a situation that involves third party harassment both internally and externally. don't know if any of you have implemented those kinds of policies.

I'm definitely seeing a slight shift, I would say, in this. I think the days are perhaps going where people will go, no, no, no, there's no way I'd involve a client or reprimand a client for their behaviour. Do you still come across it every now and then and we do everything we can, we move someone away from the client? But if we're not actually tackling the behaviour of the client, we cannot say that we are taking reasonable steps. So that is something I think we have to get all of our businesses on board with.

That was one of the live sessions recorded at the Work Agenda 2026. We hope you enjoyed listening as much as we did delivering it on the day.

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