“As an employment counsel, what issues keep you up at night these days?” This is a question we have been putting to our clients and, by and large, the responses have been fairly consistent – return-to-work arrangements, compulsory vaccinations and global mobility continue to rank fairly high on the agenda. However, and rather surprisingly, whistleblowing complaints and sexual harassment allegations have also featured numerous times. Any initial puzzlement as to why this is the case (since most people continue to work remotely from home) quickly gave way to the realisation that the modus operandi of these individuals have simply adapted to the New Normal and have moved online. Necessity is the mother of invention after all, a client noted wryly.
Whereas “traditional” forms of sexual harassment used to occur in the flesh, consisting primarily of inappropriate touching, banter of a sexual or sexist nature, late-night drinks, or unsolicited hotel room visits during business trips abroad, these days we are seeing an increase in the number of incidents carried out remotely through online messaging platforms and social media. Examples include forwarding lewd or suggestive jokes, or inappropriate images; prolonged one-to-one video conference calls (especially where the victim had set up a temporary workstation in the bedroom); a constant barrage of non-work related text messages; and comments and “likes” on social media posts. In most cases, these acts of harassment were perpetrated by the victim’s line manager or superior.
Our experience mirrors a recent survey carried out jointly by the Association of Women for Action and Research (AWARE) and the market research firm Ipsos, which revealed that two in five employees in Singapore have been sexually harassed at the workplace in the past five years, with one in five employees indicating that the sexual harassment was perpetrated online. This survey was carried out in November 2020 in Singapore, and responses were canvassed from 1,000 individuals who had been engaged in paid employment (whether on a full- or part-time basis) in the previous five years.
Upon receipt of a complaint, an investigation is typically initiated, often with the assistance of external counsel. This used to be a fairly straightforward affair in the past, with the interviews being carried out discreetly and confidentially to ascertain the veracity of the allegations. Having assisted with several such investigations during the ongoing pandemic, we observe that such investigations have become far more cumbersome and protracted. For a start, any investigation that is carried out needs to comply with workplace-specific covid-19 regulations and guidelines (such as the Safe Distancing Measures in Singapore) if there is a need for physical meetings between the investigators and each of the parties. This has an obvious knock-on impact on the selection of investigators, as well as the timing and the location of the interviews, issues that would have been resolved fairly routinely in the past.
The further one deviates from the usual accepted processes, the greater the risk that the outcome may be challenged on grounds of fairness or due process
However, the most prevalent roadblock thrown up by far is the alleged perpetrator’s refusal to cooperate with the investigation on the pretext of covid-19 concerns. 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, but who have also declined to attend virtual meetings on the basis that such meetings were not sufficiently secure (eg, the individual had no way of ascertaining who else was present in the interviewer’s room, the video call could be hacked by the complainant, or the interview would be recorded and subsequently used against the individual). Of course, some of these issues, such as third parties being present during the interview or unauthorised recording, cut both ways and could be equally (or even more) concerning to the employer. While workarounds are certainly possible and have been utilised in the appropriate circumstances, we should caution that the further one deviates from the usual accepted processes, the greater the risk that the outcome may be challenged on grounds of fairness or due process.
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. In one case, the perpetrator argued that the disciplinary policy required any interviews to be carried out “in person with a note-taker present”. As the note-taker had dialled in remotely via Zoom in that case, the policy had not been complied with. In other cases, the perpetrators alleged that their treatment at the hands of the investigators was oppressive and that they were not given a fair opportunity to be heard, which then caused them to suffer mental and emotional distress.
It would be unfair for us to comment on the veracity of these allegations in a broad-brush manner, as the facts of each case are distinct. That being said, it was clear to us that the majority of these allegations were raised as a form of retaliation, to dissuade the company from taking any further action in respect of the sexual harassment complaint. In our view, therein lies the conundrum companies face. On the one hand, employers have a legal obligation to investigate wrongdoing and protect employees from harassment and fear. On the other hand, any investigation into the actions of an individual carries a corresponding risk to the employer if the investigation was not conducted in a proper or legally defensible manner. Unfortunately, savvy employees are alive to this and have not hesitated to deploy such tactics when facing down an investigation into their conduct.
To return to the AWARE-Ipsos survey, it is apparent that this is an effective strategy. To begin with, few incidents are ever reported (only three in 10 victims made official complaints), and even fewer perpetrators are ever brought to justice or face the consequences of their actions (the perpetrator was either reassigned or dismissed in only two in five cases where reports were filed). The survey found that in most cases, the victim indicated a wish to forget about the incidents or were fearful that any complaint would adversely affect their career prospects.
These statistics are sobering. What should employers do to strengthen their training and monitoring processes to prevent online sexual harassment, and to better safeguard the interests of sexual harassment victims? We suggest some practical tips:
- educate employees on the acceptable boundaries of online communications with co-workers and the acceptable use of electronic communications (including social media);
- create a whistleblowing hotline with a strict non-retaliation policy for complaints raised in good faith;
- where permitted by law, screen emails and messages based on an appropriate and targeted set of keywords; and
- adopt flexible and non-prescriptive investigation and disciplinary policies that emphasise outcomes rather than processes. Where investigation and disciplinary processes have already been implemented as a matter of policy, review those processes to ensure that they are suitable to the current operating environment.