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Employers warned of online harassment risk
24/02/2021
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Online harassment

A new survey from UK charity Rights for Women shows female employees have experienced an increase in online sexual harassment while working from home during the covid-19 pandemic.

The research, which was conducted in late 2020, found nearly half of respondents who experienced harassment reported instances of sexual messages via email, texts, or social media; harassment on video conferencing services such as Zoom, Teams, and Slack; and sexual calls. Nearly one-quarter of respondents reported an escalation in such behaviour during lockdown.

Highlighting her experience of cyber harassment, one respondent said: “The director of the company uses Zoom to take screenshots of myself and other women which he shares with colleagues making derogatory statements and implying the photos look like were doing sexual acts.”

Although Rights for Women’s findings relate to instances of sexual harassment against UK-based employees, it should nonetheless be of concern to domestic and multinational employers alike.

Speaking to IEL, leading employment lawyers confirmed a rise in allegations of workplace harassment via online work platforms during the pandemic.

“It is true that while in-person harassment claims have dropped dramatically during widespread lockdowns and office closures, there has been an increase in allegations of online harassment,” explained Morgan Lewis partner Louise Skinner

“Allegations typically involve communications to colleagues during or following online calls, commenting on their appearance or making lewd references. The fact employees are working from home and sharing their personal environment online can make them feel that they have less personal privacy and are more vulnerable to inappropriate behaviour.”

Allen & Overy partner Vicky Wickremeratne commented: “We are aware some harassment is reported to have moved into the virtual workplace, with new technologies enabling direct messaging which may be unwelcome, and affording potential harassers with a means of having access to workers’ private spaces, which provides an opportunity for intrusive or inappropriate comment.”

Worryingly, almost three in four respondents to the Rights for Women survey did not feel their employer was doing enough to protect them from harassment or offer support; nearly one in three believe the pandemic has negatively affected their employer’s response to reports of sexual harassment, with some even suggesting employers have exploited the pandemic to delay the investigation process.

We are starting to see employers refresh their anti-harassment training and tailor it to address the particular risks associated with a virtual working environment

From an evidentiary standpoint, Skinner said: “In some ways, investigating harassment allegations of this nature is easier because written communications such as text and instant messages can be saved, and often calls and video-conferences are recorded as well – as opposed to in-person interactions where often there are few or no witnesses.” 

However, Wickremeratne believes many employers may have found their attention diverted by the immediate challenges associated with responding to the covid-19 crisis, such as health and safety measures and the operation of furlough schemes.

“However, as the lockdown situation has extended, and home working looks set to continue for some time yet, we are starting to see employers refresh their anti-harassment training and, in many instances, tailor it to address the particular risks associated with a virtual working environment," she added.

Skinner said responsible employers have taken active steps to ensure their employees have a clear avenue to raise complaints and react promptly when concerns are raised. “Many have implemented specific training to help employees deal with the remote working environment, recognising that interpersonal dynamics are different and there is much room for misinterpretation of comments, gestures, and communications more generally,” she added.

Nevertheless, investigating allegations of inappropriate behaviour have become considerably more challenging during the pandemic, explained Wickremeratne: “Speaking to a victim of harassment or a person accused of harassment needs to be approached carefully and sensitively, with a need to also ensure the interviewee is offered any appropriate pastoral care.  

“Those involved might be living alone or in challenging circumstances during lockdown and might be already struggling with that. Picking up on non-verbal cues is far harder through a screen than in person. Working from home can also increase any disconnect the person concerned might feel from their workplace while waiting for the process to conclude, which may, in turn, exacerbate any anxiety they feel about the situation.”

Keeping the lines of communication open, and ensuring employees know where to turn for support and to raise concerns is critical

For Simmons & Simmons’ Clarence Ding and Adriel Chia, the most prevalent roadblock to internal investigations is the alleged perpetrators refusal to cooperate: “We have encountered numerous individuals who have not only refused to attend interviews on the basis that such meetings were in breach of covid-19 regulations.

“We have been involved in several cases where the perpetrators had sought to overturn the decision of the internal disciplinary tribunal on the basis that the investigations were not carried out in strict compliance with company policy,’ they continued.

“In other cases, the perpetrators alleged that their treatment at the hands of the investigators were oppressive and that they were not given a fair opportunity to be heard, which then caused them to suffer mental and emotional distress.”

Although vaccine rollout continues at pace around the globe, remote working will continue for the foreseeable future. Employers will, therefore, need to consider how to strengthen their remote training and monitoring of employees, as well as improve investigation and disciplinary processes.

For Wickremeratne, employers must not “take their foot off the pedal” and continue to provide regular training on workplace harassment, which should be adapted to include scenarios based around a virtual workplace. She also advised that appropriate complaints escalation channels are signposted for employees.

“Consider what support all participants in an investigation process might benefit from and, at a minimum, assign an HR or business support person to any complainant and their accused, for the purposes of keeping in touch with regular updates and being available to answer any questions or concerns they have about the process.”

Ding and Chia suggested creating a whistleblowing hotline, with a strict non-retaliation policy for complaints raised in good faith, and, where permitted by law, the screening of emails and messages based on “appropriate and targeted keywords”.

Skinner cautioned employers to have regard to the data privacy rights of their employees and should ensure any steps taken to monitor employees’ behaviour are carried out in accordance with relevant company policies and applicable law.  

“Within these parameters, employers can take a number of steps to ensure their employees are protected from harassment,” she said. “It should be emphasised that any form of inappropriate behaviour will be taken extremely seriously, and will be investigated and dealt with in accordance with appropriate disciplinary procedures if necessary – just as it would be in the workplace. 

“Keeping the lines of communication open, and ensuring employees know where to turn for support and to raise concerns is critical during this time.”