Breaking the Silence: “Everyone knew but no one did anything” - Tackling Workplace Harassment & Bullying, & Ineffective Regulation
Following the 6th IFSEA International Conference on Executive & Founder Issues in June 2025, we are delighted to share with you a follow up podcast on the session, ‘Breaking the Silence: “Everyone knew but no one did anything” – Tackling Workplace Harassment and Bullying, and Ineffective Regulation’. Watch the video, listen to the recording or read the transcript below.
In this excellent discussion, the IFSEA annual conference panellists examine employer obligations regarding workplace harassment and bullying, as well as the key issues around addressing – and failing to address – misconduct.
Chair: Beth Hale, CM Murray LLP (UK)
Andrew Pavlovic, CM Murray LLP (UK)
Nick Vamos, Peters & Peters (UK)
Mathilde Houet-Weil, Weil et Associes (France)
Lori L. Deem, Hughes Socol Piers Resnick & Dym, Ltd (Chicago, USA)
In particular, the panel discuss:
What responsibilities are placed on the employer in the UK, France and the US?
When does inaction bear regulatory and/or criminal consequences?
The ethical and legal implications of using NDAs to conceal repeated wrongdoing.
Current practices aimed at preventing the hiring of the rolling bad apple.
How can senior leaders, regulators and governments do better?
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Video Transcript:
Beth: Hi everyone and thanks for joining this podcast, which is a follow on from the excellent IFSEA conference which took place in London in June 2025. This is a panel which discussed the topic of everyone knew but no one did anything, tackling workplace harassment and bullying and ineffective regulation. I'm joined today by the panelists from the conference itself. So Lori Deem from Hughes, Socol Piers Resnick and Dym in Chicago.
Mathilde Houet-Weil from Weil & Associates in France and Paris, Andrew Pavlovic, one of my partners at CM Murray in London, Nick Vamos from Peters & Peters in London, a criminal expert, and my name is Beth Hale and I'm a partner at CM Murray.
So we're just going to start by briefly talking about what particular obligations employers have in respect of harassment and bullying in the workplace in each of your jurisdictions. If I can start with you, Lori, please.
Lori: So in the United States, would say that employers' responsibilities break into two categories. The first is under the umbrella of prevention. Most states in the United States require employers to conduct annual training against sexual harassment. Bullying is a separate thing here in the US. It's not really recognized under the laws. We haven't progressed to the point of prohibiting bullying in the workplace.
I think all of us recognize that it also can be a form of harassment. So many trainings that are done in the US involved either bystander intervention or some other techniques to prevent bullying and harassment. So that's what I would call the first set of responsibilities is to make sure that you're creating a workplace that's free from harassment. But if it happens, then the employer's duties are to promptly and effectively investigate and hopefully remediate the harassment. And the level of responsibility or liability that comes into play if an employer doesn't fulfill these obligations really depends on who's perpetrating the harassment. If it is a coworker, then there is an entire matrix of analysis for how liability is found.
If it's a manager or an owner, then many times it's strict liability. So the employer is responsible no matter whether they investigate or take certain steps if it is done by a high level individual.
Beth: Thanks, Lori. I'll just briefly cover their position in the UK under employment legislation, which is that there has always been a prohibition on sexual harassment in the workplace. Not always, obviously, but it now exists under the Equality Act of 2010. And more recently, in October of 2024, the government introduced a positive obligation to prevent sexual harassment, not other types of harassment. But to prevent sexual harassment. there's not, it's no longer just a sort of litigation risk. There was actually a sort of positive duty to prevent before you get to the stage of the harassment actually having happened. So that's changed the landscape in this area quite significantly in the last sort of 12 months. Mathilde, would like to talk to us about France and the position there?
Mathilde: In France, of course, there is a very strong duty of care on behalf of the employer. There is a strong obligation to prevent any situation that would put at risk the mental health of the employee. So in that sense, some of our provisions are very similar to the ones that Lori just described. It is also a criminal offence in France to violate the employee's duty to various employers' duty of care, so it can lead to criminal investigations. And maybe one particular comment in France is that claims for sexual and moral harassment have risen over the past years, and the definition of sexual harassment has been widened, which can be a little annoying because it's a criminal provision, so the definition should be very precise.
But in our case, a couple of years, the criminal offence of sexual harassment also includes sexist harassment, so that would include sexist comments, like when you come back from holidays or you look tanned, this looks good on you, this type of comment that could be innocuous, depending on the situation, but that can be now construed as a violation of an employee's that could now be construed as creating emotional distress for the person that hears this type of comment.
Beth: And just coming back to you, Mathilde, while we have you, one of the things that we discussed during the session at the conference was this issue around anonymity and how you can carry out investigations.
Mathilde: Yes, so generally speaking, there is a high level of confidentiality for the internal investigation in general and violating this confidentiality again is a criminal offense. So it's a very touchy topic. that confidentiality covers the identity of the whistleblower. He cannot be anonymous towards the employer. However, he can ask that his identity remains concealed.
For anyone other than the employer, the identity of the accused is confidential. This is to prevent some unnecessary harm to his reputation. The identity of the witnesses are also confidential. This is to prevent that the accused...tries to impress them and influence their testimony. And lastly, the identity of the victim is also confidential, again, to protect her against any possible violent action of the accused. This is important, especially when the accused has a history of violence.
So this strong level of confidentiality is not always known by employers, especially smaller employers. However, it is a criminal offense to violate it. So a good idea could aid actually to hire outside counsel to carry out such investigations. And I know I sound like a baker who's telling you you need bread, but I'm saying this because we are well trained to know how to respect the rules of due process, for example, and these are the general rules that we refer to when we carry out an internal investigation for lack of a national dedicated specific legislation that tells us more precisely how to proceed in case of an internal investigation.
And especially touchy because we are at the crossroad of conflicting interests. So you have the principle of loyalty in the collection of evidence, you have the protection of course for privacy and private life, you have the obligation not to unreasonably damage the reputation of the accused because there is of course the presumption of innocence.
You have to protect the health and safety of all people involved, witnesses, etc. You have to respect the right of freedom of expression, freedom of speech of the employees. So these are lot of general principles that we have to accommodate at the same time.
Beth: That's really helpful, thank you. That does mean, some of that does make life quite challenging when you're carrying out investigations for employers.
Mathilde: Sorry, I have another comment on the confidentiality of the internal investigation. In France, in-house lawyers are not active members of the bar, which means that communication with in-house lawyers, so inside one company with inside lawyer is not privileged, as opposed to any communication with outside counselors. because we are active members of the lawyers' bar. So this should also be taken into consideration in the case, more particularly of cross-border investigations.
Beth: Thank you, that's really helpful and I think, yes, I we all need bread and likewise we all need legal advice some of the time so, yeah, that's really helpful, thanks. So Andrew, just coming to you, when might not dealing properly with harassment and other misconduct in the workplace become a regulatory issue?
Andrew: So regulators are increasingly looking at non-financial misconduct, bullying, harassment. And their particular angle is how those sorts of behaviours can create toxic workplace environments where people might not feel able to speak up if they make a mistake or if they're suffering that sort of conduct.
And the ultimate effect of that is often adverse outcomes for clients because a mistake might be covered up, the client might suffer loss. So there's been an increasing focus by regulators on non-financial misconduct. The SRA, this List as Regulator, has brought in rules. The ICAEW, the largest accountancy regulator, has just amended its Code of Ethics. And the FCA has just issued guidance on non-financial misconduct. So that's all sort of geared at how to avoid it happening.
In terms of what to do and what could happen if you don't deal with it, well, the SRA has gone the furthest in that regard because their rules actually impose a specific obligation on partners to challenge behavior when they see it. So if it's behavior which is serious enough to require immediate intervention, then they need to step in in the moment and do something to stop the behavior.
Alternatively, they might have to take steps after the event, such as reporting it to the appropriate people in their firm. And the SRA has made clear that in certain circumstances where there's been a repeated failure to challenge the behaviour of a colleague, the person who's failed the challenge could themselves be the subject of regulatory action. In addition to which the SRA and the number of regulators don't just regulate individuals, they also regulate firms and action can be taken against firms where there's been a more collective failure to prevent those sorts of behaviours perhaps because there's been a lack of policies or there's been a failure to provide regular training. So I think the main angles would be from a lawyer's perspective a failure to challenge and from a firm perspective failure to have proper policies and training.
Beth: I think it's really interesting that the SRA rules around that obligations challenge you just talked about came into force before the positive duty on employers to prevent harassment and I think they really sit quite neatly alongside one another and sort of how they work in practice is really interesting. That sort of is not just about dealing with it when it happens, it's also about taking really positive steps to stop it happening, including in the moment. Nick, when does that sort of turning a blind eye become a potential criminal issue for employers?
Nick: Very rarely in the normal course, even for quite serious offenses, because the police will want to go after perpetrators and everyone else is secondary. And the Equalities and Human Rights Commission have non-criminal enforcement powers over companies, which would be the normal way that a company-wide failure would be investigated. But there is an extreme example playing out at the moment, which is Harrods where the police are investigating and obviously the perpetrator fired can't be prosecuted. And there's a huge pressure on the police to hold people accountable. And so their normal hierarchy would be, can we go after the perpetrator? In this case, no. Therefore, can we go after people who knowingly and intentionally facilitated his criminal conduct? So enablers, and that may be possible in this case, who knows?
And then finally, they may look at, because of the extreme pressure in this case to hold people accountable, people who ought to have done something. And there's ordinarily no criminal liability for a failure or an omission to act unless one of two circumstances apply. So either the law imposes a specific duty on somebody which they fail to discharge, and that's a criminal offense, or they fail to do something which isn't a specific duty, but that failure itself amounts to encouraging or assisting a perpetrator to commit or cover up an offence. So in terms of specific duties, the most obvious one would be under the Health and Safety at Work Act. So every company has a duty to ensure as far as practicable the health, safety and welfare of its employees and a senior manager can be guilty if the company's events, the company's failure is committed with their consent, connivance or neglect.
And in this case, willful blindness, so if you close your mind to an obvious risk, that can generally be treated as equivalent to awareness of the risk and therefore can be sufficient to prove negligence or even intent, depending on the circumstances, if the blindness is so willful that clearly you must have intended the consequences to take place.
Beth: Allegations in Harrods must go that far, mustn't they, because in the Harrods case, because they they're saying that people very deliberately chose who worked on particular shifts in order to prevent other people finding stuff out and things like that, so who knows? I'm talking about case for speculation, obviously.
Nick: Yeah, I think it's easier to talk hypothetically in this case because the police are still investigating. for example, a senior manager who knew or ought to have known that a perpetrator presented a risk and failed to take a reasonably practical step that could have been taken to lessen that risk or negligently failed to discharge a duty irrespective of whether they knew about the perpetrator's conduct and that failure contributed to the risk could themselves be liable for the health and safety breach. Now, I have to stress this is theoretical in most cases because the health and safety executive who are the main enforcement body for health and safety offenses, although they accept that sexual harassment, sexual harms come within health and safety law, they don't normally enforce them. They leave that to the Equalities and Human Rights Commission and they leave individuals to the police. But a wholesale failure over a long period of time, which caused significant harm to a very large number of victims in which the perpetrator cannot any longer be prosecuted. That's the situation in which I think this theoretical application of the law could become a reality because there may be no other way of holding a company or individuals liable. Now, the second route is where there isn't a specific duty, but the failure itself amounts to encouraging or assisting, effectively aiding and abetting somebody commit an offence. So normally this has to be accompanied by a mental state, either intention, knowledge or belief that the principal offence is going to be committed and your action or inaction makes you a secondary party. And there are statutory provisions which say that encouragement or assistance includes by either taking steps to reduce the possibility of criminal proceedings being brought. So that would be somebody who after the event helps cover up a crime or failing to take reasonable steps to discharge a duty. So that would be intending somebody came to you with a complaint that so-and-so did something to me or I've heard that so-and-so is behaving badly with other people and you did nothing, but you knew that there was some truth in that allegation and you intended by your failure to encourage the perpetrator to get away with it or to commit future offences. So that's the way in which the criminal law in an extreme situation can apply in these situations.
Beth: And I think, I mean, it'd be really interesting to see how that particular case has developed, but also how more generally that develops as in the sort of, the, well, in the wake of Me Too, I know it's quite a long time ago now, but still, I think we're still seeing the sort of fallout from that and how various different agencies you've referred to the health and safety executive, the EHRC and the police and how they all kind of interact, I think will be really interesting to see how that develops.
Nick: Yeah, and as I said at the start, the pressure on the police to hold somebody accountable for something is the main driver here, and that leads to creative applications of the law in areas where it may not normally be used.
Beth: Yeah, and that's what I think that's what we've seen since. And that's why the regulators have started to get involved. That's why all of these, the input from organizations from areas where we might not have expected previously to see them. that's really, that's why this is such an interesting area to work in.
Nick: And the final comment, sorry, the duty that somebody may fail to discharge could be the regulatory duties that Andrew is talking about as well. So there's a clear crossover there.
Beth: Could it also be the mandatory duty under the employers mandatory duty?
Nick: If you fail to discharge a duty and that failure amounts to encouraging or assisting somebody to commit an offence, then yes.
Beth: Really interesting, thank you. So the next issue we were going to discuss was non-disclosure agreements. interestingly, there has actually been a really significant development in the UK since the conference on this, which is that the UK government has introduced into its employment rights bill a provision which is due to come into force in various stages, part of it next year. They've introduced a provision which will prohibit non-disclosure agreements from being used in cases where there is any allegation of discrimination or harassment. We've yet to see the details on that and what that means and how they're going to deal with situations where a complainant might want confidentiality provisions in that agreement. I think that they've indicated they will be allowed if they're requested by the complainant. And we're also yet to see what they mean by when there are allegations of discrimination and harassment, that's obviously extremely broad.
But there's for many several years now since Me Too, but there's also been interest in NDAs from the regulator. And Andrew just wants to talk to us about sort of what the regulator looks at in those in that area.
Andrew: Yep, so the regulator issued a warning notice a number of years ago now warning lawyers that draft non-disclosure agreements or what we're talking about in that context are usually just confidentiality clauses and assessment agreements which prevent the individual from discussing the case of certain parties. The SRA have made clear in that warning notice that any confidentiality clause cannot prevent individuals from reporting matters to the police, the regulator, etc. And they have taken action against individuals who have drafted such agreements before. One of them was a fairly high profile case that ended up being staged on medical grounds, but the intention was to prosecute that case. there have been other action taken resulting in individuals receiving rebukes where they've tried to prevent
their clients who they've fallen out with from referring their own conduct to the regulator. So they are concerned about the use of non-disclosure agreements. They will take action against individuals and they do look at firms as well and they've gone into firms and conducted thematic reviews to see how firms incorporate those confidentiality clauses into their settlement agreements. The thematic review found that they were being used without thought and just as a as routine without considering actually, well, are there any disputed allegations here? Is there any reason why we would want to include this confidentiality clause? And they also found that individuals weren't aware of the circumstances in which they might have to report a colleague or acting at another firm who had produced a settlement agreement which plainly didn't comply with the warning notice to the SRA. So there may be circumstances if you're a solicitor and you receive a settlement agreement which only doesn't comply with the board notice, you might have to actually refer that individual to the regulator. Again, it would be extremely rare and think it would depend on the facts, but the thematic review identified that there was a lack of knowledge really about the circumstances in which reports might be required.
Beth: Yeah, and obviously, mean, the provision, proposed provision in the employment rights bill goes beyond those clauses drafted by lawyers, it applies to all confidentiality provisions in respect of cases where allegations of harassment and discrimination have been made. So it's pretty broad. Lori, do you to just talk to us about the US position? And I know that there are differing positions in different states and so I'm not going to ask you to talk about every single one, but if you could just give us kind of overview, that would be really helpful.
Lori: Sure. I would say that in the wake of the Me Too movement, there was a push to take action against non-disclosure agreements, which were seen to be one of the root causes of the recidivism and the sort of everyone saw something, no one said anything, ripple effects of the Me Too movement. And so as everyone would expect, the legislature was a little late to the party and slow on this, but in the federal government, they actually passed the Speak Out Act, which was signed into law by President Biden in 2022. And it's very limited in its coverage. It really only prohibits the enforcement of non-disclosure agreements that were given or that were signed before the harassment or before the sexual assault occurred. And so...
It's basically it's very narrowly drawn, but it is in some ways a huge step in the right direction to acknowledge that many employers were using these broad NDAs as a chokehold on women speaking out or any victims speaking out about harassment that was being perpetrated, particularly by high level individuals in the organization. So it does not prohibit NDAs in settlement agreements or separation agreements, but it's trying to say, you can't hand these over unilaterally to people at the outset of employment and expect them to be enforced. California, as everyone would probably expect, goes much further in its coverage in its law that is called the Silence No More Act, which was signed into law in 2021. And that actually prohibits NDAs in both employment agreements and separation agreements. And it also has broader coverage in terms of what you can actually speak about. So where the federal act just speaks to sexual harassment and sexual assault, the California Act allows people to speak about any acts of harassment, any acts of retaliation. And so it's not sex specific or any other unlawful acts. And so that actually helps whistleblowers in many respects. And while you are still allowed to keep the amount of a settlement, confidential and the identity of the complainant can actually be concealed in settlement agreements. Broad-based non-disclosures are prohibited. And in my state, Illinois, we have something called the Workplace Transparency Act, which was signed into law in 2019. And it basically sort of mirrors the federal protections, but goes a little further. It prohibits NDAs, non-negotiable NDAs that are given in employment agreements at the outset of employment and allows people to speak about unlawful harassment, discrimination, and retaliation. So it's sort of the middle ground, I would say, between the very expansive California prohibitions and the much more narrowly tailored federal prohibitions. And so every state is figuring this out for themselves based on their own outrage and reaction, quite frankly, to level of outrage to sex harassment and the fact that the acknowledgement that NDAs are a piece of the puzzle in terms of how silence has bred this recidivism culture for harassment in the workplace. And so everybody's coming to the party at a different stage and finding their own way to give more protection or give more freedom to speak.
Beth: Yeah, and what there has definitely been since 2018 is a real move in the UK, towards very long non-disclosure agreements where the carve-outs are significantly longer than the prohibition itself. that they are, certainly when they're well drafted by sensible lawyers, what they contain is just this really long set of carve-outs making very clear what people can talk about when they can make disclosures and who they can speak to
Lori: Yeah I would just draw a contrast to what Andrew was talking about though, is that there really isn't any movement to hold the drafters accountable. We don't have that in the US. And so I wonder if that would change things a bit if we had more consequences for drafters who act complicity and actually create agreements that allow this kind of conduct to perpetuate. I think that would be a very interesting new movement in the States, but I doubt we'll ever see it.
Beth: It's interesting. I think it has had a huge impact here in terms of how they're drafted. Obviously that doesn't help people who have what? NDAs which are not drafted by lawyers, but it has had a huge impact on practice in employment law in the UK. One of my favourite things, Lori, when you speak about US laws is how the US names its laws. always say, the UK law is always really boring. Yeah. I love the Silence No More.
Lori: Well, I would say the Speak Out Act comes from, believe it or not, it comes out of the Roger Ailes and Fox News situation. It was actually spearheaded by Gretchen Carlson and some of the other women who were under the Roger Ailes era at Fox News. And so they named it and President Biden kept it when he signed it into law.
Beth: And the silence no more, it's just brilliant. Ours are always really boringly named. Anyway. So just sort of looking forward rather than backwards, think about what employers and sort of management could be doing better. What are they doing in practice to avoid sort of hiring a rolling bad apple to prevent harassment in their workplaces? And what are they doing and what could they be doing better? Mathilde, have you, do you want to talk briefly about France and what the situation is there.
Mathilde: So in France, at the time of hiring, you cannot ask questions related to potential previous misconducts because this is protected by privacy, by a private life. You can only do so if there is a direct link with the job. For example, if you hire someone to take care of children, you can ask to see the criminal records.
However, there is no general obligation to disclose such a previous misconduct. it's difficult really to identify at this stage if someone is likely to misbehave. What I would recommend in general is to involve the works council.
because they have strong powers in France to contribute to the fight against harassment. So they can take part in the investigations, which is important because then it will give more legitimacy to the investigation process.
And Lori, think you've seen some interesting elements in references and reference requests.
Lori: Yes, there is the same tension here that Mathilde was highlighting in France between being too intrusive in the hiring process and asking inappropriate questions that could expose the employer who's doing the hiring to some sort of claim that they discriminated against a candidate for one reason or another. And we have the sort neutral reference is sort of the US standard dates of employment and position, and that's it being given out as the official reference. But I have seen more and more my executive clients talk to me about the fact that head hunters and other professional recruiters are asking and seeking references, long list of references that go well beyond just the last sort of set of individuals that work or colleagues that worked with the individual. They go pretty far back. And I think that reference checks are taking much longer than they took before because people realize that this might be the only opportunity that you have to say that you've done due diligence in vetting a candidate before you hire them for a very senior role. But there's a tension there because there's kind of a cone of silence around bad actors for whatever reason. People either want to forget it and move past the situation and they don't ever want to talk about it again or they're afraid that if they say something, they will be exposed to themselves and they don't wanna implicate themselves in what was either a tawdry or difficult situation. So I think there's efforts being made, but it's very, very difficult to penetrate sometimes this code of silence that exists.
Beth: Yeah, I mean regulators, Andrew, are taking an interest in making sure that the sort of people don't move around and misbehave in each of their organizations.
Andrew: Yeah, some of them. So the FCA has a regulatory reference system where if someone is taking a specific role, a senior role basically, they have to have obtained, the employer has to obtain references from their employer for the employer's last six years. And that reference is in a prescribed template and it has to refer to any disciplinary action taken against the individual and the outcome of that. And there's also a sort of a box at the end which asks if the employer has any concerns over the individual's fitness and propriety. And that box is there predominantly to capture the situation where someone resigns during a disciplinary process. So before the disciplinary outcome and the intention sometimes of that resignation is to avoid a disciplinary finding. And the FCA guidance says you may wish to refer in that box to the fact that you'd commence disciplinary proceedings. Obviously, you have to then state that the allegations were unverified in the sense that the disciplinary process did not conclude. But it does at least allow you to say that we started the process, we weren't able to finish it, but the new employer has that information. And then in terms of what the what we see in law firms is we don't see anything prescribed by the regulator, but we do see law firms sending detailed natural partner questionnaires where they will ask individuals, you ever been the subject of a regulatory investigation or a complaint to the legal ombudsman or very, know, quite detailed questionnaires. And obviously anyone completing those questionnaires has an obligation to act honestly and with integrity. And in fact, we sometimes see people get into trouble for not deterring things that they should on those questionnaires and that in itself then becomes a regulatory issue.
Beth: And potentially interdisciplinary, internal disciplinary issues as well, of course. Nick, what do you think employers management teams could be doing better to manage this kind of issue?
Nick: Well, I think on the criminal side, as I said, it's normally quite an extreme scenario where the criminal law will be involved. But one lesson, think, and I'm not a M&A lawyer, but I think the lesson from Harrods is when you buy a company, the due diligence that you do on the kind of behavior that may have gone on before your ownership that could lead to claims against you, I don't know what happened with the Harrods take over because the new owners came in in 2010, which is after all of this conduct concluded. And yet they're paying for it. So I think M&A lawyers are probably watching and upgrading their due diligence as a result.
Beth: Absolutely, think due diligence is, I mean, at all levels, really important, isn't it, for sort of preventing this kind of thing happening going forward. I also think training, I think it's so interesting for non-criminal lawyers to listen to what you say about that. And I know you say it's very, I know it's very rare and it's very only in extreme circumstances, but for senior management teams to understand that there is the potential for criminal liability, if you close your eyes, this kind of stuff, I think is also really...potentially powerful because I think regulatory involvement has had such a powerful impact in the areas where it has and is having such a powerful impact.
Nick: Yeah, I mean, if you work in a regulated sector, the regulators will definitely come after you first, and they will be the people you need to worry about the most. But if it's not regulated, then absolutely, you do need to be aware of your criminal risks.
Beth: Yeah, so interesting. Well, thank you all so much for your contributions today and for your contributions at the conference in June. Thanks everyone for listening. If you have any questions, do feel free to send them in to us. We'd be happy to hear from you. Thanks.