Have we “solved” the sexual harassment epidemic highlighted by #Metoo by moving to remote working? It certainly has had less media coverage over lockdown but don’t be fooled; just because employees are having fewer in-person interactions, does not mean that this problem is a thing of the past. Sadly we are hearing that sexual harassment is continuing to occur in ‘the new normal’, in some cases in new and different ways. So what should employers be aware of in order to adequately protect their staff and manage their legal risk?
With the majority of office-based staff working remotely, there has been an inevitable change in how people communicate. In order to replicate in-person conversations and meetings, many companies have encouraged staff to use video conferencing facilities such as Microsoft Teams and Zoom. Whilst this can be conducive to teamwork and relationship building, it can also have negative side effects. For example, evidence suggests that managers may feel entitled to comment on their employees’ appearance. Slater and Gordon conducted a survey of 2,000 staff working from home during the pandemic and found that 35% of women reported experiencing sexist demands from their employer, such as being asked to wear more make-up or dress more provocatively on video calls. For businesses where staff will have regular virtual meetings with external clients, it may be important that a certain dress code is maintained, but this must apply equally to men and women, and best practice would be for any contraventions of the dress code to be dealt with via the appropriate HR channels.
There can also be an increased sense of informality when colleagues are working from their own homes, without the physical and social constraints of the office environment. Video calls can be intrusive, as co-workers and clients can see into each other’s homes, which may provide information about individual’s living arrangements and personal relationships. The European Parliament’s campaign MeTooEP has found that 16% of the people they had surveyed believe they had experienced harassment via video call, known as ‘Zoombombing’.There is also likely to be an increased reliance on informal and unmonitored messaging in many organisations, where staff may have work-related or social conversations via instant messaging systems or WhatsApp. This makes it difficult for managers to have oversight of issues arising within their teams, which in turn increases opportunities for harassment.
Along with this blurring of the boundary between work and home has come (for some) an extension of working hours. Staff have reported feeling more pressure to be contactable during evenings and weekends, as managers know that they are at home. This, coupled with the economic uncertainties that have accompanied the pandemic, may lead to many employees feeling insecure about their jobs. Such circumstances leave people vulnerable to harassment, and less likely to report it if it does occur.
The Rights of Women campaign has provided advice for individuals who are experiencing harassment whilst working from home. This includes that employees should use monitored and pre-approved forms of communication for work purposes and use the background feature on video calls to increase privacy.
The campaign also suggests that people should avoid logging on or answering calls outside of working hours. Whilst employees should not be pressured to work excessive or anti-social hours, this approach may not always be practical for senior employees or those working to tight deadlines. In addition, many organisations are encouraging their employees to embrace the increased flexibility that remote working can bring, by adjusting their working hours to fit around exercise, childcare arrangements etc. This may mean that individuals take time out during the working day and then work longer into the evenings. Employees should, however, remain conscious of respecting their colleagues’ rest periods. The Mindful Business Charter recommends that when communicating outside of working hours, employees consider being clear in email subject lines whether the message needs to be read or actioned promptly, and make use of pre-timed settings so that emails will not be received late at night/at weekends. This is important both to help protect employees from harassment, and to support their mental health and wellbeing.
Changing office dynamics
It appears likely that remote working is here to stay in some form. Many organisations are considering allowing their staff to work remotely at least part of the time for the foreseeable future. However, it is recognised that for some people, there is likely to be a need or preference for office-based working, due to personal circumstances or mental health considerations.
For those who do decide to go back into the office regularly, it may be some time until there is a return to the full and sociable workplaces of the pre-pandemic era. Employers need to be aware of the increased risk of harassment in circumstances where staff may be working at the office with a significantly reduced number of other people present to provide supervision and support.
One demographic that is likely to benefit from more office-based working is junior members of staff, who need to attend training and seek support and guidance from their colleagues. Junior employees are also less likely to have a home office or dedicated home-working space, which may mean they can work more efficiently from the office, and may also be less likely to have caring responsibilities which encourage them to work from home. However employers should be aware that research supports the view that younger and more junior staff are more likely to be subjected to harassment, and less likely to report it.
Employers should consider how they can best protect junior staff members. Mentoring or buddy systems can help ensure that junior employees have a more senior colleague they can raise concerns with, as well as assisting with their development. In addition, where a more senior employee is found to have harassed a more junior colleague, appropriate disciplinary action should be taken. The EHRC’s technical guidance on sexual harassment at work suggests that such an abuse of power should be considered an aggravating factor leading to more severe sanctions.
Challenges in reporting
Reporting sexual harassment is often daunting, as victims can grapple with feelings of guilt and shame, and can fear recriminations. These difficulties can be increased in circumstances where employees are working remotely. They may feel isolated and unsupported, and may also face practical difficulties when discussing their harassment, such as a lack of privacy due to sharing their working space with family or flatmates. In addition, where employees do not have regular in-person contact with managers or members of HR, there can be fewer opportunities to have informal one to one conversations.
It is crucial for managers to bear these issues in mind, and have a virtual “open door”. This may require more conscious effort to build in regular non-work related conversations with reports, and ensure that employees feel safe raising issues without fearing they may be criticised as a result, or their concerns may not be taken seriously. This is vital not only for combatting harassment, but also for identifying other potential issues and problems within an organisation.
In order to address the risks that can arise from new working arrangements, we suggest that businesses consider the following:
Refresh/Set expectations. It is important that your workforce is aware of what amounts to harassment, and the expectations and etiquette surrounding work-related communications during periods of remote working. This could include codes of conduct, and reminders that emails and instant messaging conversations on work devices may be preserved.
Build relationships. Open communication between employees and their managers is vital. Managers may benefit from soft skills training to provide them with the best techniques to support their reports remotely, and ensure that they feel comfortable raising any issues they may have.
Publicise reporting procedures. Clear information should be provided to employees on how they can report any incidents of harassment. The anti-harassment policy should be available on the company’s intranet, or an equivalent source which can be accessed remotely, and should be easy to use.
Be responsive. Once a member of staff raises a harassment complaint, it is important that this is acknowledged and investigated promptly. Employees may well have invested a huge amount of time and nervous energy in getting to a stage where they can submit the complaint; to have done so and be met with silence is highly stressful. If employees feel their concerns are not taken seriously, they are less likely to raise further issues in the future, and the organisation will be hampered in its ability to address problems. In addition, employees may seek to raise their concerns through other means such as a regulator or social media.
Monitor issues internally. It is important that issues and trends are monitored to identify any patterns of harassment. For example, any comments at employee exit interviews should be collated and assessed. Staff surveys are also a useful tool in understanding whether employees have been harassed at work. Managers and HR should also be alive to any warning signs and changes in staff behaviour, such as increased sickness absence, a lack of participation in team meetings or a reluctance to work with a particular individual.
For a further range of insights into how sexual harassment issues are being tackled around the world, please do read our CMS Expert Guide on sexual harassment in the workplace, which compares the legal position adopted in 27 countries across the globe.