Workplace bullies on the back foot
• How global employers are managing complaints
Irecently spoke to a multijurisdictional panel of employment law experts from Baker McKenzie offices in five different jurisdictions around the world.
They were Mirjam de Blécourt (partner and head of employment, Amsterdam), Monica Kurnatowska (senior employment partner, London), Johan Botes (partner and head of employment, Johannesburg), Fermin Guardiola (partner and regional head of Employment, Madrid) and Joanna Matthews-Taylor (partner and head of employment, Dubai).
We discussed how organisations face growing pressure to address complaints about inappropriate behaviour in the workplace, including cases involving senior executives accused of harassment and bullying, for example. These challenges highlight the critical need to effectively manage such issues, from addressing headline-grabbing allegations to navigating the complexities of handling complaints.
EP: Mirjam, let’s start with you. When it comes to complaints in the workplace, what is the current global landscape on this issue? MdB: There is increasing recognition, awareness and education about what conduct amounts to bullying/ harassment in the workplace, which has led to more clarity and confidence in identifying unacceptable behaviour, much more awareness around issues that are breeding grounds for such behaviour, for example an imbalance in power, and when this is being exploited.
There has also been an increase in employee activism globally, with workers expecting to be heard on issues such as social inequality, discrimination and environmental impact, with younger generations particularly (although not exclusively) less likely to stay silent on issues that they feel strongly about.
There is an increasing expectation employers will be transparent, accountable and behave ethically and responsibly, with these characteristics being as important for many workers as individual pay and progression.
Fostering a “speak up” culture is growing in importance not only from the perspective of treating staff fairly and the demand for it from workers, but also because it is critical to identifying and addressing business risk issues.
EP: Monica, what have you noted in the UK on this issue?
MK: We have seen a great deal of scrutiny around the excessive and inappropriate use of nondisclosure agreements. The use of these clauses in settlement agreements, for example, has been criticised in recent years and has become a regulatory issue for advisers as well as an issue for employers.
The optics of appearing to “hush up” incidents in return for compensation, which was once common practice, now need to be considered very carefully. From a reputational perspective, the perception of a cover-up can be worse than being transparent about the original incident.
EP: Johan, how would you describe the SA framework on inappropriate behaviour in the workplace, and how does our framework measure up to other countries around the world?
JB: In SA, like most jurisdictions, there is no comprehensive definition for the broad term “inappropriate behaviour in the workplace”. It includes various forms of unwanted behaviour, including sexual harassment, aggression, violence and bullying. In many situations, this will be contextual.
Cultural, societal and local factors around acceptable behaviours will feed into this. In some cases, there may be a grey area, where the context, positions of those involved, the relative power between the parties and other factors play a role in determining whether unacceptable behaviour has occurred.
An important piece of legislation on this topic in SA is the Employment Equity Act, which prohibits direct or indirect discrimination based on specific protected grounds. Two years ago, the department of employment & labour published the Code of Good Practice on the Prevention and Elimination of Harassment in the Workplace. This code expanded the protection for employees from only sexual harassment to protection from all forms of harassment. Harassment is understood to mean:
● Unwanted conduct, which impairs dignity.
● Creates a hostile or intimidating work environment for one or more employees or is calculated to, or has the effect of, inducing submission by actual or threatened adverse consequences.
● Is related to one or more grounds in respect of which discrimination is prohibited in terms of the Employment Equity Act (for example, race, gender, ethnic or social origin, colour, sexual orientation, age, disability to name a few). EP: Fermin, is there a similar position in the EU? FG: Under EU law, there is also a right not to be discriminated against or harassed on grounds of specified protected characteristics. This right is enshrined under various treaties and directives and this forms basis of employee rights in EU member states. Interestingly, this includes the UK notwithstanding its exit from the EU.
I also want to add that, at a global level, Spain, the UK and SA are signatories to the International Labour Organisation’s (ILO) Violence and Harassment Convention. This is the first international convention recognising everyone’s right to a world of work free from violence and harassment, including gender-based violence and harassment. Broadly, it sets out a framework to prevent and address violence and harassment at work. However, ILO conventions do not give rise to any directly enforceable rights in domestic or local courts.
EP: Joanna, can you tell us the approach in the UAE? JMT: The UAE is quite similar to the EU and SA. UAE labour law prohibits various forms of discrimination in respect of protected characteristics, including race, religion, nationality, gender and disability, which would impair equal opportunities or prejudice equality in obtaining or continuing employment.
It also outlaws sexual harassment, bullying, or any verbal, physical or psychological violence against the employee by their employer, superiors, colleagues or those working with them.
The UAE also recently updated its anti-hatred law, which continues to prohibit discrimination on grounds of religion (although note that religion is relatively narrowly defined), belief, rite, community, sect, race, colour, ethnic origin, gender or race.
The UAE’s harassment related to a protected characteristic has a specific definition and covers unwanted conduct related to the protected characteristic that has the purpose or effect of violating the complainant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.
It’s good to understand the framework and definitions, but employer liability for bullying and harassment in the workplace is also important to consider.
Where discrimination or harassment has occurred, employers can be vicariously liable for such conduct. It is a defence to show that they took all reasonable steps to prevent the conduct from occurring. Individuals as well as the employer can also be held personally accountable.
Under the UAE antihatred laws, the law holds company representatives, managers, or agents accountable for offences committed by company personnel where it is established that the representative was aware of the offence.
EP: Let’s talk about whether there are any mandatory workplace policies, regulations or other instruments required in the different jurisdictions. Monica, what is the situation in the UK? MK: In the UK and, I think in the Netherlands too, an evaluation of the possible risks that employees may be exposed to in the workplace is mandatory. The risks considered must include those posed to psychological as well as physical wellbeing. Where risks are identified they must be addressed.
Fostering a “speak up” culture is growing in importance not only from the perspective of treating staff fairly and the demand for it from workers, but because it is critical to identifying and addressing business risk issues.
In the UK, it has become a regulatory focus in the financial services sector where calling out issues such as bullying and harassment that feed into poor culture and increased risk is as important as identifying financial malpractice.
The EU Whistleblowing Directive has now been implemented across the majority of member states. The directive establishes rules and procedures to protect “whistleblowers” — workers who report breaches of certain areas of EU law. EP: Fermin, where an employee raises a complaint regarding inappropriate behaviour in the workplace, what happens if an employer fails to address this, and what does the employer need to do? FG: The optics of mishandling or, worse, trying to silence complaints about bullying, harassment, or workforce dissatisfaction can be disastrous from a reputational perspective.
Failing to address an employee complaint is also likely to take up significant management time in the long term and result in even more scrutiny of an employer’s actions by its workforce and other stakeholders.
The potential conflict and tensions in the employerworker relationship are also likely to result in increased stress and mental health issues for both the aggrieved workers and those responding to the issues.
It also seems increasingly likely that workers will show their dissatisfaction simply by leaving, with some reports suggesting this is more likely among younger workers. There is, however, a reported growth in so-called “loud quitting”.
Broadly, the steps that need to be taken and the issues that need to be considered include the following (although this may vary depending on the company’s policies and/or collectively agreed processes):
Assess whether the complaint warrants that an investigation be conducted.
Suspension during an investigation may be appropriate in some cases, but this should not be automatic and must be assessed to determine whether this is a reasonable course of action on a case-by-case basis.
If it is not possible to resolve the issue and/or the nature of the complaint warrants a further investigation, the employer may initiate an investigation. It is important that the investigation be conducted as objectively as possible.
Once the investigation has been completed, a grievance outcome will be communicated, taking into account the general principles required for such an investigation, such as hearing both sides.
As the grievance may lead to disciplinary action being taken against another employee, care must be taken to ensure that the complainant receives feedback on their grievance and that confidentiality towards the other employee is maintained. This can be a challenging balance to strike in practice.
Where the employee is dissatisfied with the outcome, they can exercise their right of appeal.
EP: Joanna, in the jurisdictions represented in this interview, have we seen an increase in litigation around the topic of inappropriate conduct in the workplace? JMT: Overall, yes. In 2018, a study in the Netherlands for example, demonstrated that the MeToo movement had caused an increase in reports and legal proceedings.
This increase has continued, as demonstrated by an increase in the number of successful termination proceedings relating to inappropriate behaviour in the workplace since January 1 2019. In the UAE, we are aware of a number of discrimination cases raised in the Dubai International Financial Centre (DIFC) over the past year. Further, the first race discrimination claim is currently ongoing in the DIFC.
In the UK and as a result of the MeToo movement, employers have found themselves having to investigate historic complaints, particularly complaints involving sexual harassment.
In addition, we have seen an increase in employees raising concerns relating to bullying and harassment in the workplace and are involved in an increasing number of investigations in this regard.
EP: Johan, is SA any different?
JB: SA is no different. We have also seen an increase in litigation around this topic at a local level.
EP: Thanks very much to all of you for this insight into how global employers are managing workplace complaints.