Bullied Toyota engineer’s suicide offers lessons in workforce harassment education
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John van der Luit-Drummond is editor-in-chief of International Employment Lawyer

“It would be better if you died.” Words no one should ever have to hear. And yet they were said to a 28-year-old Toyota engineer who would subsequently take his own life in 2017. Two years later, a regional labour bureau in Japan recorded the death as work-related after a pattern of harassment by the engineer’s supervisor was discovered.

This week, the country’s largest company issued an apology to the deceased man’s family. A spokesperson for the automotive giant confirmed an undisclosed settlement had been reached, adding that the company would be “carrying out preventative measures to ensure that such a painful episode is never again repeated”, including workplace counselling and a zero-tolerance policy for those found to bully fellow workers.

Power harassment, or “pawa hara”, is rooted in Japanese business culture with around 88,000 complaints each year. Combine this with “karoshi”, or death from overwork, and you realise there is a serious problem in Japan’s workforce. Attempting to improve workers’ conditions, then prime minister Shinzo Abe’s government introduced new anti-harassment legislation in 2020, but in such a deeply hierarchical culture it may take many years – and many lawsuits – before attitudes change and complaints begin to decrease.

Accused of mismanagement that allowed the abuse to continue, Toyota has reportedly confirmed the supervisor accused of harassment was “punished”, but declined to provide further information. In a statement, the company promised to improve workers’ health care, better evaluate management, educate workers, and encourage a culture where employees can speak up.

Fortunately, not all instances of unacceptable workplace behaviour result in such tragic consequences. Nevertheless, this case is a timely reminder for global employers to strengthen their internal anti-harassment education policies, especially in the context of the covid-19 pandemic. As previously reported, the spread of the novel coronavirus has done little to diminish workplace harassment. Robbed of the opportunity to torment their victims in person, harassers have moved their activities online.

“The increase our clients are seeing in online bullying and harassment points to proponents exploiting the social distance online communication provides for them to directly access their victims rather than having to circumvent the usual workplace hurdles, including the proximity of colleagues which may prevent verbal interaction, to do so,” says Emma Higham, a Doha-based partner at Clyde & Co, who suggests the current increase in complaints experienced by employers may be only the tip of a much larger iceberg.

“The current remote and flexible working arrangements prompted by covid-19 capacity restrictions may also result in a delay by the victims of such bullying and harassment to report it or be able to confront the attacker because of the absence of their usual work support systems, including access to a line manager, work colleagues, and/or social gatherings at which the victim can discuss matters and obtain support.”

“The directness granted by online tools could make people forget the (n)etiquette” – internet appropriate etiquette – “rules of the social environment they are in from time to time, thus leading to […] bullying and harassment,” observes Emanuela Nespoli, a partner at Toffoletto De Luca Tamajo e Soci in Italy. “Indeed, formal (n)etiquette rules can be considered the first line of defence against inappropriate behaviour.”

In Argentina, where coronavirus restrictions are gradually easing, a report issued by the Office of Advice on Workplace Violence warned that harassment complaints had grown by almost one-fifth during the first nine months of 2020, when compared to the previous year, and that complaints by male workers had also increased.

“In view of the relevant data, we could say that rates of bullying and harassment may have increased due to the less controlled environment of online communications,” agree Mercedes Balado Bevilacqua and Cecilia Acosta, managing partner and senior associate, respectively, at MBB Balado Bevilacqua Abogados. “Therefore, this creates a need for companies to put in place workshops addressed to remind staff the importance of a workplace free from any type of violence and encourage employees to address HR in case of a discomfort or claim.”

The law of unintended consequences
Amid the discovery of new covid variants and workers’ general reluctance to return to the physical workplace on a full-time basis, employers seem to increasingly accept that some form of remote working is here to stay for the foreseeable future. With that, however, comes the risk of workers feeling harassed or bullied, even if that was far from the employer’s intention.
“Given the spread of remote work, generally speaking, employers may have to change their view on assessing employees’ performance and focus more on the results of the performance than on its duration, thus letting employees organise their working day more freely,” says Toffoletto De Luca Tamajo e Soci’s Emanuela Nespoli. “However, this may not prevent employers from managing employees’ leave according to the company’s need and business, even with reference to female employees, in compliance with legal and national collective bargaining agreement provisions on leave.
“As long as the employer will behave according to the mentioned provisions the risk of indirect discrimination or bullying/harassment can be deemed low. In any case, a point of attention for employers could be specific rights provided for a determined category of employees, which, if not respected, could lead to unlawful behaviour. For example, under Italian law, female employees have a priority to work remotely (in smart working mode) for the three years following maternity leave.”
Employers may also want to consider how a right to disconnect, even in jurisdictions where no such legislation currently exists, can be used to help reduce pressure on remote workers.
“Managing remote working hours can be a challenge for employers and employees alike. It can be difficult to find a balance between ensuring business needs are met while maintaining a healthy work-life balance, which can have an impact on employee mental health. Introducing updated remote-working policies with working-hour frameworks or limits can be helpful from an employee wellbeing perspective and to manage statutory overtime obligations,” explains Rachael Smith, a senior associate at Clyde & Co.
“Given the lack of visibility, this should be done in conjunction with employee wellbeing training and putting in place measures to ensure consistent touchpoints with employees to avoid employee burnout. Employers should encourage employees to take breaks for lunch and as employees’ individual circumstances differ, employers may want to give them the ability to control their calendar a bit more to work around their schedules.”

Having acknowledged that workers can be victimised outside of the physical workplace, employers need to consider the kinds of training that can educate their workers on defining harassment and bullying, and limit the spread of such unacceptable behaviour. However, global employers would be wise to devise location-specific training programmes tailored to each workplace rather than a one-size-fits-all approach.

“The term ‘harassment’ covers a very broad spectrum of behaviour and what is harassment for one may not be for another,” says Samantha Ellaby, a legal director of Clyde & Co in Dubai. “This is particularly likely to be the case when managing a multinational workforce. Employees should therefore be trained on what constitutes harassment and what is and is not acceptable within a work context, for example, work events, communications with colleagues, and clients outside of working hours. Written policies setting out this information are advisable. Harassment allegations need to be carefully and sensitively managed and it is important that HR, legal, and management are trained on how to do so appropriately.”  

“Employers should train their employees, including top managers, to understand the behaviour allowed and forbidden and that specific conduct may be offensive or considered as harassment for the victim, regardless of the intention of the person who behaved in such way,” agrees Nespoli, adding that blanket policies requiring the disclosure of workplace relationships may not be enforceable in certain jurisdictions

“Policies including the obligation to disclose a possible conflict of interest could be a prevention measure, but the employer should pay attention not to excessively investigate employees’ personal lives. In Italy, the so-called statute of workers provides for a prohibition on the employer to investigate political, religious, or trade union opinions of the employee as well as facts not relevant for the employment relationship.

Regardless of whether the abuse is perpetrated in person, online, or a combination of the two, when a complaint is raised a responsible employer must undertake to investigate the allegations quickly and fairly for all parties involved, including itself.

“To be fair and effective, companies should verify the alleged facts, talk with the victim, understand whether they want to stay anonymous, and look for further confirmation of the alleged behaviour,” advises Nespoli. “On the basis of the information collected, then, the employer should assess whether to start a disciplinary procedure against the alleged perpetrator and, if this is the case, ensure there is the possibility to challenge and explain the reported facts within the context of the disciplinary procedure.”

However, investigating complaints while maintaining confidentiality can be a challenge, says Rebecca Ford, a partner at Clyde & Co in Dubai. “This is particularly the case when the complaints arise within a small office, where management may find that by the time the complaint has been raised to them, everyone within the office is already aware of the allegations.”

Complaints should also be investigated dispassionately, allowing both parties to state their case without concluding that their employer has taken a side. “It is important not to lose sight of the fact that until the case has been investigated fully and the subject of the complaint has had an opportunity to put their side of the story, the allegations are unproven,” adds Ford. “Both parties should therefore receive similar support from the employer – in some cases, it may even be appropriate to offer some form of counselling support to both the victim and the alleged perpetrator.”

Although the introduction of anti-harassment policies is a key step in the fight against workplace bullying, Nespoli says it is of fundamental importance to change the cultural paradigm of an organisation through better education. “Often, employees – both male and female – behave inappropriately without even noticing. So, policies are essential, but employers should focus also on ensuring their implementation and spreading the principles within the company.”

Establishing reporting frameworks
“First, have a clear policy on workplace behaviour and business conduct which is regularly updated as necessary,” says Sara Khoja, co-head of Clyde & Co’s MEA employment group. “This puts employees on notice of the clear expectations and boundaries between work and social life. It should also contain some guidance on work social events. The policy should include details on how, when and to whom a complaint should be raised.
“Next, have a strong reporting culture, so that the types of issues raised are monitored and analysed at a senior level (by an internal committee or board if necessary) so that corporate-wide issues can be identified and addressed.”
Sarit Thomas, a professional support lawyer at the firm, adds: “Ensure that employees are given sufficient training, understand that there is an expectation to raise issues, and have confidence that something will be done when they do. Consider what support can be provided to both the complainant and the accused throughout the process.”