Long read: Does the charity sector need a bullying and discrimination ombudsman?

Many bullying, discrimination and harassment cases fall outside the Charity Commission’s remit - Rebecca Cooney asks whether another body could help

In an ideal world, workplace allegations of bullying, harassment, discriminaton and abuse within charities would be investigated and resolved internally. 

Following an investigation, the perpetrator would be held to account and the victim left with a sense of dignity, justice, and the security of knowing that such a problem could not arise again. 

But as recent stories of discriminatory bullying and abuse, and the outpouring of allegations on social media under #NotJustNCVO reveal, that is often not the case. 

When internal options have been exhausted or deliberately shut down, many complainants are told: “If you don’t like how we’ve handled it, you can always go to the Charity Commission.”

But it isn’t always that simple, as one whistleblower at a large development charity found out. His experiences have led him to call for an ombudsman with a specific remit to investigate the handling of allegations of bullying, abuse, harassment and discrimination within the charity sector. 

The whistleblower, who has asked to remain anonymous, complained to the Charity Commission after senior management at his organisation failed to deal with his allegations of bullying and discrimination.

He encountered the simple problem that the commission is a regulator, which exists to ensure charities as a whole comply with charity law, rather than an ombudsman – a body that investigates individual complaints of poor conduct.

“I hadn’t made that distinction in my brain,” the whistleblower says. “So I was trying to use a framework, the commission, that isn’t designed for what I wanted it to do.”

Part of the problem is that without opening a statutory inquiry, the commission has relatively few powers to compel charity staff or trustees to assist in any investigation it carries out. 

“You submit your complaint, and the commission officer contacts the charity and asks it to defend the allegations,” the whistleblower says. 

“But the charity, as far as I can tell, can pretty much say whatever it wants because no one’s going to verify the information – the complainant doesn’t get to see it and challenge it.

“It can say whatever it wants as long as it’s plausible for the case officer, who of course has no real understanding of what actually went on. That gives the charity a lot of scope to be economical with the truth or just lie.”

This lack of verification, he says, allowed his employer to shift the burden for dealing with the allegations onto an external body. 

“It was able to imply that the commission has looked into an individual case, when it’s a bit more blurred than that,” the whisteblower says. 

“The commission looked into it to an extent, but its decisions were very much about the regulatory environment, not my individual case. 

I think charities can use that ambiguity to give the impression that the commission does play that ombudsman role and that the charity had been absolved.”

He believes the presence of the commission, and the nebulous sense that many have of what the commission will and will not do, has created a “false sense of security” that avenues for redress and accountability exist outside of the charity. 

“If we really want to get broad accountability we need an ombudsman – something that has the power to look at individual cases, unlike the commission,” he says.

The right interventions

Sophia Moreau, one of the organisers behind #NotJustNCVO, agrees – pointing out that alongside discrimination, concerns about safeguarding currently “aren’t necessarily being taken seriously until a law has been broken and every legal avenue has been exhausted”. 

She says an ombudsman would be able to examine not just the individual complaint, but also any cultural issues within the charity that may have created the environment for it to happen. 

Moreau says this is the problem with employment tribunals.

“Even if an individual takes their case to tribunal, that’s only ever going to address what happened to them, it won’t address the wider organisational issues, like the culture or the lack of representation,” she says. 

“An employment tribunal is never going to make interventions such as recommending the organisation has more diverse leadership.”

Many complainants want assurances that what happened to them won’t happen again, she says. 

An ombudsman-based complaints system would create the opportunity for a “more global, holistic correction of the circumstances”, which doesn’t exist at the moment. 

The commission could help, Moreau says, by publicly defining the parameters of when it will get involved. 

The current lack of understanding has led both to complainants spending time and energy on a channel that was likely to yield limited results, and those who did have a case within the commission’s remit being put off. 

This echoes the experience of a second whistleblower from a separate charity, who says she came away from her prolonged interactions with the commission unsure whether the regulator even knew exactly what its remit was in such cases. 

Lack of clarity 

The lack of clarity over the commission’s remit was highlighted as far back as 2019, in the In Plain Sight report into bullying in the charity sector, produced by charity leaders body Acevo. 

One of the report’s recommendations says: “The commission should help victims understand its own thresholds for reporting bullying incidents including what is in or out of the Charity Commission’s scope.”

Even Kristiana Wrixon, head of policy at Acevo, admits that she’s still not entirely clear about the commission’s parameters.

“Even after that research, I have what I think is my understanding of it, but I’m not entirely sure that it’s the correct interpretation,” she says. 

“Obviously the commission has a remit around governance, so it seems that in an instance where the issue apparently stems from poor governance, then it would take a view on it and investigate it. 

“But I’m not sure what evidence it would require to reach that conclusion.”

Wrixon says that many people Acevo spoke to for its report said they had put a lot of time and effort into understanding exactly what they could and couldn’t go to the commission with, and had still found their interpretation was wrong. 

“That caused a lot of frustration and difficulty, and a couple of people said that experience was almost worse than the experience they had in the first place because it felt like there was no way to get justice for it – it was a retraumatising process,” she says.

But without this information, Wrixon says, it’s too soon to determine whether there should be a separate ombudsman. 

“Until we know exactly where the gaps are, it’s hard to come to a conclusion – is it that we need to hold the Charity Commission more firmly to account for investigating cases that are within its remit and that would solve some of the challenges? Or is it that there needs to be an entirely new body set up?”

But, she says, setting up an ombudsman would be such a big undertaking that “we need to be entirely sure that that’s where our energy should go before we set off, so I don’t want to rule anything out”.

Dismantling systems

In a statement, the Charity Commission said it had heard the calls for it to explain more clearly the extent and limits of its role in this space, and that it was committed to doing so. 

“We will undertake that work this financial year, and expect to engage with sector bodies and government as part of that process in the months ahead, and to make the outcomes of the work public in due course,” it said. 

“The commission alone cannot tackle the problem of bullying and harassment in charities, and there is a role both for government and sector bodies in helping ensure charities are safe places not just for beneficiaries, but also for staff and volunteers.”

The idea of an ombudsman to oversee behavioural and cultural issues, rather than strictly charity law issues, has been floated in the recent past, specifically with regard to the international development sector in the wake of the 2018 safeguarding scandal.

The whistleblower from an international development charity says he believes it could be effective. 

He took his complaints to the Core Humanitarian Standards Alliance and the Humanitarian Quality Assurance Initiative – two self-regulatory standards bodies within international development. 

But despite both organisations acknowledging that his charity’s original investigation was flawed, he was unable to get what he felt to be a meaningful response from them.

“In scenarios in international development where it’s clear everyone knew what was going on and no one did anything, you can say: ‘Oh, that’s just aid workers getting cynical,’” he says. 

“But if it’s also the case that if you report it you get fired and no one will do anything, then there’s a serious barrier to people to disclose.” 

He claims former colleagues in the countries where his charity operated have told him that witnessing his experience has put them off whistleblowing in the future. 

Alexia Pepper de Caires, co-founder of the anti-sexual abuse campaign NGO Safe Space, is sceptical that an ombudsman would have any impact. 

“What an ombudsman does for me is add a layer onto an already sinking ship that was built for a very different purpose to what we are trying to use the charity sector for now,” she says. 

Pepper de Caires argues that until the systems that create the oppression and inequality the aid sector and wider charity sector are trying to deal with are dismantled, it is impossible to rid charities of their own problems with racism, sexism and other forms of discrimination. 

Creating an ombudsman, she says, “would just be another layer of complaint, and a system that’s going to be as sexist and racist and everything that we’re finding at every other layer because… it will be drawn from the same system”. 

But Helen Evans, a whistleblower who raised concerns about the situation at Oxfam before the safeguarding scandal broke and who gave evidence before the International Development Committee’s inquiry into the issue in 2018, believes an aid ombudsman could make a real difference. 

She envisions it as “an independent international body that people can go to with complaints of sexual exploitation and abuse perpetrated by aid workers”.  

Evans says: “If we're to make the seismic shift needed to stop systemic abuse then we must find a way to make this work. Without it, we're failing survivors."

But she says one reason that other measures have been prioritised, such as a passport for aid workers ensuring they can’t simply switch organisations after a complaint is made against them, is because the ombudsman idea has so far “fallen in the ‘too difficult’ box”.

Creating accountability

In the case of a domestic ombudsman, there are inevitably questions about how it should be funded or run.

One whistleblower says she believes it would have to be government-funded – and, she argues, it should have a role in overseeing the commission’s action where complaints did fall within its remit.

“Much as the government is not completely impartial, it’s probably the best option,” she says. 

However, “they would need their own internal and external accountability” and would have to include a range of stakeholders, including those “representing whistleblowers, regular citizens, people with specialist knowledge of governance and charity law”, she adds. 

Moreau agrees, adding that the leadership of any organisation would need to be “representative of the groups that are most impacted by discrimination and harassment”. 

She also believes the remit of an ombudsman should include not just legal concerns, but also where organisations fall short of best practice, and should publish case studies. 

And, Moreau points out, the ombudsman could also help to solve the perennial problem of establishing how often non-disclosure agreements are used and misused in bullying, harassment and discrimination cases. 

“Right now we have no way to measure the number of NDAs, but if you had to disclose that to an ombudsman, that could look at what’s going on in the same organisation regardless of changes in individual members of staff,” she says.

This might also give complainants who had signed NDAs a place to commit their experiences to record, in a way that could be acted on or inform guidance without breaking the terms of the agreement.

Wanda Wyporska, executive director of the Equality Trust, has her doubts about the ability of an ombudsman to be truly independent. As well as the danger of “political capture” or allegiances, she says, “everyone in the sector knows each other – there are all sorts of relationships there”. 

And she believes many of the problems that an ombudsman would deal with could be resolved internally. 

“Essentially, the charity sector should be far more unionised than it is,” she says. “When people are in a union, when things work well, you can see if there’s a collective issue – you don’t get a situation where people get picked off and managed out as individual cases, whereas those who are doing it get to stay.

“We’re just not seeing that, and that’s one of the many reasons why people then start to talk about an ombudsman.”

The sector needs to think about why people aren’t finding the redress they need through existing internal whistleblowing policies and procedures, she says.

Wyporska is not alone – Liz Gardiner, chief executive of the whistleblowing charity Protect, argues that the best place to tackle workplace culture is in the workplace itself. 

She is sympathetic to the idea of an ombudsman, but says: “It would meet the same challenges that we have already with the tribunal system – it’s an after-the-event remedy, not a prevention.”

The solution she envisages is to ensure that every charity has a whistleblowing policy and effective arrangements – “not just ticking the box, not just having the policy, but making sure it works”. 

While many organisations have such policies in place, they often fail to explain the difference between a grievance and a whistleblowing declaration, or offer the proper training to managers, Gardiner says.

“So managers who are receiving these complaints are pointing people down a grievance route without recognising that they’re talking about a cultural problem. 

“Quite often those problems are very difficult for people to explain unless you’ve got someone who’s listening out for them.”

Protect offers benchmarking toolkits to help charities assess their policies, and will also offer complainants advice; both about whether their complaint should be taken to the commission, and how to frame it in a way that will communicate that there is a wider concern for the charity, not just the individual.

“It’s good that there’s a focus on this issue right now and people are taking this seriously. I think that’s really encouraging,” Gardiner says. “But I want to see people being confident to speak up within their organisation in the first place.”

Wyporska believes that younger workers coming into the sector are increasingly willing to speak up. 

“People aren’t tolerating it any more and they are forcing change,” she says. 

But for those who are already seeking justice and dealing with situations where the charity leadership itself is part of the problem, internal changes and external accountability are simply coming too slowly. 

“It takes a huge amount of time and effort to pursue a complaint at the moment; for me, it was three years,” says the international development whistleblower. 

“I’m aware of a number of things about me which allow me to do this that other people wouldn’t have. I’m a man, I’m white and, while I did experience some trauma, my story isn’t as deeply traumatising as experiences others might have. 

“Even for me, going over it time and time again takes its toll, and it feels like the system is set up to prevent you from making a successful complaint because it’s so drawn out.”

Although he says the commission’s processes have improved as a result of its work with Protect in the years since his initial complaint, he still believes an ombudsman would be a crucial step in allowing more people to access justice.

The other whistleblower says she believes progress was only made in her case because she refused to take no for an answer – otherwise, she says, she would “just be another person marginalised by the system”.

“It feels like I got more than someone who didn’t push, and why am I more entitled to that than someone else?” she says. 

“The outcome in my case was entirely deserved[...] and will hopefully ensure people are protected and safeguarded from the kind of nefarious conduct I endured. However, I believe without my tenacity my voice perhaps would not have been heard.

“That is not justice, that is not a just system.

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