Where next in the sector’s fight against bullying and discrimination?

In the wake of the leaked report into discriminatory bullying at the NCVO and revelations of similar behaviour across the sector, Rebecca Cooney speaks to legal experts and organisers of the #NotJustNCVO campaign to ask what structural changes need to be made. Part one of two

A month ago, Third Sector published extracts from a now-infamous report that found “bullying and harassment” on the basis of race, gender, sexual orientation and disability happened “with impunity” at all levels of the National Council for Voluntary Organisations.

Alongside expressions of outrage and disappointment in the NCVO, many charity Twitter users began to share their own stories of racism, ableism, homophobia, sexism and bullying in the charity sector.

A group of campaigners began to curate the outpouring of stories under the hashtag #NotJustNCVO, providing a vivid and sometimes harrowing picture of discriminatory bullying that, it seems, is rife among organisations that are supposed to be engaged in making the world a better place.

It is not the first time the charity sector has been in such a position – and hashtags can lead to change. In 2019, the discovery of Citizens Advice training materials for communicating with people from minoritised ethnic backgrounds sparked #CharitySoWhite, the hashtag which has since formalised into a campaign group providing an important voice speaking out against racism in the sector.

So, what needs to happen as the sector faces fresh scrutiny over bullying?

Sophia Moreau and the other organisers behind #NotJustNCVO are wrestling with this question. They have set up a Twitter account, @CharityDiscrim, and are developing a strategy for the campaign.

It’s early days and nothing has been decided yet, according to Moreau, so at this point her thoughts and those of others involved with the hashtag are just that – their own thoughts.

It is important to be clear about what the problem is, she says: clearly bullying is part of the issue, and no one should be made to feel bullied; but the bigger problem is “the fact that people are able to exercise these abuses of power”.

The bullying discussed in the NCVO report was explicitly centred on race, gender, sexual orientation and disability, something Moreau says the sector needs to accept is commonplace.

“If you have a protected characteristic, if you have more than one, there is a hugely increased chance of discirmination and [that] it’ll be repeated over the course of your career.”

Change needs to start “structurally and culturally”, she says.

In this first part of a two-part analysis, Third Sector asks experts and sector organisers for their thoughts on the structural challenges, and how they can be addressed.

Non-disclosure agreements

The apparent prevalence of non-disclosure agreements relating to bullying in the charity sector has drawn ire from campaigners, and made it more difficult for stories of bullying and harassment to come to light.

For obvious reasons, it’s difficult to gauge how many people have signed deals not to discuss the behaviour they were subjected to in return for a payment, but, anecdotally at least, it seems that many internal grievance procedures end in an NDA.

Moreau says: “The use of NDAs in covering up discrimination, harassment and abuse cases needs to come to an end – and at the very least, the people who have signed NDAs simply so they can access some semblance of justice in that situation should be able to report what happened safely and without fear of retallion.”

Lizzie Walmsley, who tweeted under #NotJustNCVO about her own experiences of taking a bullying case to tribunal, says she understands why many people sign NDAs.

“They’ve got mouths to feed, they have bills to pay, they don’t believe the charity sector will give them a fair chance if it ever gets out that they raised a problem – and so it often means they live with this guilt, as well as everything else,” she says.

For the charity’s part, she argues, NDAs are “a brutal, nasty tool that is used to silence vulnerable people”.

“Why are you paying people for their silence? You’re not the mafia, you’re a charity.

“If you really don’t have anything to hide, if the payments are just recognition of the pain and suffering caused, then you can offer a settlement payment that still allows the person to speak out. But that’s not what the payments are for – they’re always attached to people’s silence.”

Ian Wasserman, legal director at law firm BDB Pitmans, says it “has been an accepted practice” to include a non-disclosure clause in settlement agreements for all sectors for “a long, long time”.

In practice, NDAs are very difficult to police unless there is an obvious, public breach, he says, and points out that the agreements can’t prevent those who sign them from making whistleblowing disclosures about issues that arise in the future, or prohibit them from answering questions from a regulator.

Many people may not fully understand that these exceptions exist, he says.

“In any case where an individual thinks they may have the need to disclose something where they’ve signed a settlement agreement, they should be taking legal advice to make sure they stay on the right side of the line,” he says.

Wasserman understands why this might be a difficult position for an individual to find themselves in.

But from an organisation’s point of view, he says, “as long as you’re not seeking to suppress something that should legally be out there, I can understand if there have been allegations of discimination that are not proven, that when paying money to an individual, the organisation would want them to agree not to repeat or disclose those allegations further”.

John Palmer, a senior adviser at the dispute resolution service Acas, disagrees.

NDAs aren’t necessarily a problem in and of themselves, he says. But while they can be used for “very clear and legitimate business reasons”, they are often used in situations which “would often be more productively resolved through other means” and as a “first or only option to resolve a situation, when often they should be used as the last resort”.

Palmer states categorically that it is never appropriate to use NDAs in a case involving bullying, harassment and or discrimination.

“Acas would always advise that is not good employment practice, and runs a high risk of invalidating some or all of an NDA, if an employer attempts to use it to address a bullying, harassment or discrimination matter,” he says.

When it comes to ensuring that an individual’s decision to sign an NDA is truly voluntary, Palmer advises that organisations “make use of a wide range of options, from rigorous and routine monitoring to constantly challenge their NDA usage through to ensuring managers are well-trained and staff are well-informed about how a company might use NDAs”.

He says: “The more open, honest and transparent a company is, and the more selective and infrequent their use of NDAs is, the more likely they will be to ensure that employees do not feel pressured into agreeing to NDAs.”

He also suggests employers familiarise themselves with the free, non-statutory guidance on the Acas website.

Tribunals

For those who don’t settle their complaints internally, another option is an employment tribunal. Here, too, Moreau believes there needs to be an overhaul of the system. Since taking her own harassment case to tribunal some years ago, she has offered support and mentoring to others following suit.

“The serious nature of some accusations means organisations spend a lot of time investigating them internally,” she says.

But there is a catch: complainants have a limited amount of time in which to take a case to tribunal – three months minus one day after the last incident occurred.

There is a logic behind this requirement, as Moreau points out: it ensures that people don’t forget what happened, making witnesses more reliable.

But with discrimination and harassment cases, there is a need to prove that more than one incident occurred over a period of time, and internal investigations often take so long that complainants find they’re out of time once they start considering a tribunal as an option.

“Either investigations need to be conducted very quickly or there needs to be an extension of that time frame,” she says.

Wasserman is sympathetic to the dilemma complainants face – they may want to ensure they have exhausted all internal avenues before they “push the nuclear button” of taking a case to tribunal.

One thing they can do to secure themselves more time is contact the Acas Early Conciliation Service, which can extend the time limit by up to six weeks. He says this “isn’t much, but it’s something”.

Another issue Wasserman points to with the tribunal service is the length of time the process takes.

Even before the pandemic there was a significant backlog of cases in the employment tribunal system, and Covid-19 has only exacerbated that – meaning it may take a year or even more to get a result. This may well be acting as a barrier, dissuading people from seeking justice.

Part of the problem, Wasserman says, is that there aren’t enough serving tribunal judges within the system.

In 2013, the government introduced fees of up to £1,200 to take a case to tribunal, which led to a drop of 79 per cent in the number of cases over the subsequent three years. But in 2017 the Supreme Court ruled the fees were unlawful and they were abolished.

“When the fees came in and the number of cases plummeted, the judiciary got rid of a huge number of judges,” Wasserman says. “Then, when fees were lifted, cases skyrocketed again. But recruiting judges has been a real issue for the tribunal system.

“As with a lot of public sector and judicial systems, it’s largely down to funding – they simply need to recruit more employment judges to get through the backlog.”

Once a case arrives at tribunal, Moreau says, there are still more challenges to come: and there needs to be a change in how charities approach defending themselves at employment tribunals.

“Charities don’t behave like private sector organisations – I’ve personally, anecdotally, noticed that charities will be more defensive when litigating, and that will lead to more aggressive tactics,” she says.

“For example, if the victim is still employed there, there may be internal reprisals.”

Wasserman acknowledges that personal hostility is a risk in employment tribunals, particularly regarding claims of discrimination, as due to its very nature those who have experienced it are unlikely to have a paper trail or concrete evidence that proves it took place.

“Really it is about each party digging their heels in, trying to make the tribunal and the other side accept their version of events,” he says.

“No organisation, whether they are a charity or a business, wants to admit they behave in that sort of way, and people can behave more defensively when they’re trying to defend personal actions than if trying to justify a business decision, for example.”

For Moreau, the aggression she sees in charities is a result of organisations being unwilling to stop and consider whether the case has merit.

“It becomes about proving the organisation has honour, so the complaint is seen as a threat to the organisation and that they need to be stopped by any means,” she says.

Lizzie Walmsley says this tallies with her experience of going to tribunal.

“It’s gruelling, it’s a trauma in itself,” she says. “It’s not a grand court, it’s a dodgy room in Holborn – but you’re on the stand, effectively, and it’s not a desirable ending.”

To make matters worse during her experience, she says, even when the court found in her favour, her former employers appealed the verdict.

When charities do this, she says, it feels as though “they think they are above the law and common decency – a court has convicted you and you still think you can double down?”

Another tactic that Moreau claims charities often employ is sending complainants "cost letters", warning them that they could be liable for the employer’s costs.

Due to the complex nature of discrimination cases, these can be steep.

She says it’s relatively rare for costs claims to be upheld in these cases, but for the complainant receiving it, especially if they are representing themselves, the prospect can be very intimidating.

Paul Seath, an employment partner at the law firm Bates Wells, argues that in such cases, charities are within their legal rights to warn claimants about potential costs.

“The charity would be spending charity money on defending a claim and it would be remiss of the charity not to consider how that money can be recovered,” he says.

But he concedes that cost letters “should be used very carefully and should not be used to intimidate”.

The advice Wasserman offers charities when communicating with individuals who have taken them to tribunal is to “write in such a way that you would be happy for that correspondence to be read out in a public forum, because it may”.

If charities wish to avoid the costs associated with tribunals, perhaps the clearest way to do that would be to ensure they handle complaints in a way that prevents them from reaching that stage.

Walmsley says she never intended to take her case to court, but her experiences internally left her feeling she had no other option but to seek external accountability.

“All I was pushing for was an internal resolution – just an apology – but they wouldn’t even give me that,” she says.

The second part of this series will look at how campaigners believe internal complaint handling and other cultural issues need to be addressed to tackle bullying and discrimination in the charity sector.

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