Is it just #MeToo? 1st August 2018 High profile sexual misconduct allegations are having an effect on the world of D&O Insurance. And, opening up many a can of worms in the process. May I hasten to add, that these cans of worms should have been addressed long ago! But, as more people are being encouraged to speak up or are simply finding their voice to report inappropriate behaviour, it opens the debate surrounding discrimination in the workplace. D&O cover, and in particular EPL extensions certainly come into play when it comes to misconduct – including sexual harassment or discrimination – and even being privy to but not reporting misconduct can land you in hot water down the line. You don’t actively have to be the person committing an offence; you cannot turn a blind eye. Any member of staff, particularly senior members, have a duty to act appropriately at work. But how do we define ‘appropriate’? Where does office banter and a joke cross the line into inappropriate or offensive? It’s a very thin line. We’ve all experienced a comment in the office that’s made us raise an eyebrow. But what’s offensive to one may not be to another, so how can we determine where a potential EPL or D&O claim may fall? A survey carried out in October 2017, by the BBC, found that 50% of British women and 20% of men have been sexually harassed at work or their place of study. But, when you start to look at the bigger picture, sexual harassment is just one form of discrimination and potential EPL claim. When you start the discussions, it often opens the conversation around everyday sexism and unconscious discrimination. Again, it’s a hugely grey area, open to interpretation and personal objectivity. For larger companies, the answer is often to settle quickly and quietly, in an attempt to keep it out of the press and avoid any negative reputational repercussions. Certainly, you’ll find this in the US where class actions may be started which magnifies the risk to the company and their D&O policy. For many companies in the last few years, there’s a huge pressure regarding equality and inclusion. For some, it’s even a performance targeted KPI, which can lead to negativity in itself. The damage has been done over many decades, so it’s right that the damage is rectified. We need to see more woman in the boardroom and leading the way in senior roles. But, it needs to be done correctly – otherwise more damage can be caused. People need to be employed for the right reasons. And, hitting a quota is not one! Otherwise, it’s simply positive discrimination. I’ve seen cases where because a C-Suite employee has openly stated that a woman should be employed into a senior vacancy to show diversity. And, I’ve seen cases where a woman has been overlooked for a role she was better qualified for, was overlooked because there was a ‘concern’ that she may ask for maternity leave imminently. Sadly, we’re talking about recent cases as well. They are cases that so many of us will have seen or heard about, because they aren’t few and far between. Therefore, Senior Management need to be careful what is said, when and to whom. As the free flow of information and trail of evidence, such as emails, WhatsApp, Twitter and Facebook, can be used as evidence and help establish who’s liable. It’s not just conversations in the workplace, so policies should be in place to protect employees inside and outside of the office. The #MeToo cases might be stealing the headlines and raising the questions we need to be asking of corporates. But, what can we do to help the policyholders ensure they are on the right side of that very thin line? Having clearly defined, and fully communicated, HR policies are essential. It’s important to regularly refresh this message, particularly for those employees with supervisory or management responsibility. It’s also vital for any organisation to demonstrate the correct ‘tone at the top’, with female board members and those in senior roles, having a zero tolerance to discrimination breaches. We also need those HR policies to address the sensitive topic of the Gender Pay gap, which in itself can be deemed a source of discrimination. Historically, we’ve seen gender assigned roles – Fireman, Binman, Milkman, Postman, Dinner Lady, Lollipop Lady…the list goes on. There’s been a shift from local councils and government agencies to try and redress this. Introducing gender neutral job titles – midday assistant and refuse collector, to name two. But, the issues actually lie much deeper. Birmingham City Council was one high profile case. As it found entrenched discrimination across 49 different roles, all were traditionally female dominated roles, such as cleaners and lollipop ladies. These women were excluded from bonuses worth up to 160% of their basic pay, bonuses that were paid to men in the same pay band. Historical pay grading is often to blame for disparity in pay. And, Birmingham City Council certainly used it in this case. So it’s important for companies to review their pay structures on a regular basis, and put right the wrongs of the past. It could be argued that by overlooking this, and not putting it right, senior management are negligent in their lack of action. So making changes and being transparent around pay bands is crucial. D&O might be a tired product that’s had a rough time of late, but in the wake of #MeToo and equality, diversity and inclusion, it’s certainly an essential part of any businesses insurance portfolio.