Following the move to remote working during the COVID-19 pandemic, an interesting question arises as to whether we will also see a change in the nature and frequency of workplace bullying and harassment as well. We anticipate that international employers will not only see a rise, but also that their efforts investigating bullying/harassment will be more complex.
Will distributed workforces result in an increase in bullying/harassment?
Logically, those who engage in bullying/harassment are unlikely to stop doing so just because of these new working arrangements. Indeed, the near universal adoption of video calling as part of everyday business communication across the globe will, if anything, provide fertile ground for not only a rise in bullying/harassment, but also significant challenges in catching and addressing it.
The fact that one-to-one work interactions can now happen so privately may mean that the lack of normal societal checks on poor behavior results in a marked increase in these issues and their severity.
The reduced ability to have discrete face-to-face conversations with HR, other colleagues, etc. has meant that unplanned conversations have become much rarer, meaning that it is also conceivable that unwanted behaviors will go unchecked for much longer than before.
The detrimental impact of such behavior may also be exacerbated for those who are feeling isolated, working from home, and unable to confide in other colleagues. The home is arguably no longer the refuge it once was.
Investigations
Investigations into bullying/harassment are, on the whole, more difficult in the virtual context.
The issues that can arise from a distributed workforce include, but are not limited to:
- Complaints potentially covering a far longer period of time as a consequence of unwanted conduct going unchecked.
- Notwithstanding the advances in video technology, there is still no substitute for in-person meetings given the value of non-verbal communication, and investigation settings are no different.
- Trying to arrange in-person meetings (if they are possible at all) may cause delays in the investigation, given the potential logistical challenges of arranging days when the relevant individuals are present in the office.
- If investigations are conducted virtually then, not only can there be issues with the quality of the evidence obtained, but preserving confidentiality will be challenging given the lack of ability to control who is in the room.
- Preventing employees recording meetings has been an increasing challenge over recent years as technology has improved but, in a remote setting, it will be very difficult to prevent.
- It seems inevitable that employers across the globe will face challenging questions as to what evidence can and cannot be relied on, particularly given the different privacy thresholds that exist in different jurisdictions. Not only may employees have made their own covert recordings of video calls, but there will conceivably be situations where an individual wishes to call on evidence from a third party, for example, their partner, a friend, or another person they live with, who may have also been present/overheard what has been said. This may then give rise to secondary considerations, such as whether the fact that a third party has overhead such matters is itself a cause for action against the complainant as this may evidence their own breach of confidentiality.
- As advances in technology continue apace, the potential for employees to create fake ‘evidence,’ such as edited video calls, social media extracts, and audio recordings also increases.
What should global employers do?
Global employers should consider what is available to them (bearing in mind local law) in respect of ways of monitoring behavior as well as providing communication channels through which issues can be raised.
Employers should consider providing options (which are clearly communicated to employees) such as raising a complaint with a manager or HR, but also whether to have a confidential email or telephone hotline managed by a third party where complaints can be raised anonymously, again subject to local law. Policy communications delivered by senior executives such as the global HR director, which explain the company standards and encourage employees to report wrong-doings on behalf of themselves or others, can also be helpful. Addressing complaints in a timely and consistent manner will always be key.
As companies move past their trial periods and start to formalize these new working arrangements, they should be mindful of updating workplace policies and procedures to include examples of inappropriate behavior that occurs in remote settings (particularly video calls) and the standards expected by the employer. Employers should also try to ensure that all employees have participated in workplace behavior training and keep a record of this.
Above all, global employers must now more than ever remain flexible and creative when it comes to managing workplace bullying and harassment.
To find out more about bullying and harassment in the new normal please reach out to Paul Whinder or anyone else on our specialist international employment law team.
