Everyone deserves to work in an environment free of harassment. However, the significant number of complaints lodged every year proves that this is still a serious problem. This first blog in our two-part series is all about recognising and addressing workplace harassment. We will give you a general overview of the different types of misconduct that may result in harassment and what you, as a staff member, should do if you find yourself victim to any such abusive behaviour. In part two, we will look at how harassment complaints work from the perspective of the victim and examine the relevant investigative procedures, rights of the affected individual and possible remedies.
What is harassment?
Although the notion of workplace harassment may vary slightly depending on the policies in force in international organisations, combining the iterations in case law, it can be defined as any unwelcome conduct that might reasonably be expected or be perceived to cause offence or humiliation to another person, when such conduct interferes with work or creates an intimidating, hostile or offensive work environment.
Harassment most commonly occurs between two people linked by a hierarchical relationship due to the disparity in power or status (e.g. between a supervisor and their supervisee), harassment may occur between individuals of all levels and contract types. While typically involving a pattern of conduct, harassment may nevertheless take the form of a single incident.
As a general rule, whoever files a harassment complaint has the duty to substantiate his claim. It is important to note, however, that there is no obligation on the complainant to prove that the abusive behaviour actually occurred. Instead, a complainant should provide enough evidence to establish a prima facie case, i.e. enough evidence to warrant the opening of an investigation into the matter. In order to make a finding of harassment, investigators will look at whether the affected individual perceived behaviour towards them to be humiliating or offensive.
The ILOAT has recently held that there is no need for the victim to prove that the perpetrator of these acts “intended to engage in harassment, the main factor being the perception that the person concerned may reasonably and objectively have of acts or remarks liable to demean or humiliate her or him”.
A demon with many faces
The reason why the definition of harassment is so broad is because this abusive conduct, as a wicked demon, may take many different forms.
The most common and yet less evident form of harassment is psychological harassment. This occurs when an individual or a group engages in vexatious behaviour that manifests as verbal comments, actions or gestures that have the effect of offending or demeaning another person. Psychological harassment may involve making humiliating or offensive remarks to another person, undermining another person’s reputation by gossip or ridicule, but also making it impossible for another person to perform their duties by, for example, withholding information or setting impossible deadlines.
However, it should be noted that not all unpleasant situations can be classified as psychological harassment. Constructive criticism regarding work performance, giving instructions in an abrupt manner during stressful work situations, harsh discussions among colleagues, or even being in a bad mood from time to time, are not normally considered examples of abusive conduct. It is also important to remember that performance management is not harassment.
A particularly despicable form of harassment, which can be either physical or psychological, but that usually occurs in a combination of the two, is sexual harassment. According to the WHO internal policy on Preventing and Addressing Abusive Conduct, this can be defined as any unwelcome conduct of a sexual nature, that may occur in the workplace or in connection to work, and that might reasonably be expected or be perceived to cause offence or humiliation, when such conduct interferes with work, is made a condition of employment or creates an intimidating, hostile or offensive work environment. Examples of sexual harassment may range from overtly vexatious conduct, such as unwelcome touching, patting, rubbing or brushing up against another person, to more insidious but no less offensive behaviour, such as sharing sexual or lewd anecdotes or jokes, making sexual comments about appearance, clothing or body parts, asking for sexual favours, or in its most serious form, sexual assault.
Sexual harassment can be so subtle that the United Nation Secretary-General’s bulletin (ST/SGB/2019/8) has defined it as “the manifestation of a culture of discrimination and privilege based on unequal gender relations and other power dynamics”. In order to address such behavior within its ranks and to complement the existing reporting mechanisms, the United Nations has launched a helpline to enable staff to call out sexual harassment in the workplace. Open 24 hours a day, the helpline is a resource for UN personnel to speak confidentially with an impartial and trained individual who can provide information on protection, support and reporting mechanisms.
A unique form of harassment developed by the case law of international tribunals is institutional harassment.
According to well settled ILOAT jurisprudence, this can be defined as the “accumulation of repeated events and/or as a long series of examples of mismanagement and omissions by the organisation which deeply and adversely affected the complainant’s dignity and career objectives”.
The key to understanding institutional harassment lies in the identification of a pattern of events and behaviours that, although taken individually may be managerially justified, amount to harassment when considered as a whole. Institutional harassment is difficult to prove and the fact that it is not addressed specifically in the policies of many international organisations does not help. However, the ILOAT has clarified that “[an organisation] cannot ignore that the case law of the Tribunal recognises institutional harassment and that it should take this into account when interpreting its own rules.”
Key tips for Staff
If you have the feeling you’re being harassed at work, but you’re not sure whether you have an actual legal claim, here are few tips that may help you:
- Report the incident(s) or behaviour that is making you feel unsafe. It is your fundamental right to work in an environment free from harassment and any other form of abusive conduct. Speak to trusted colleagues and advisors in the appropriate channels and do not put your health or dignity at risk.
- Report as soon as you can. Although there are no rigid time limits, it is important not to wait too long and report the abusive conduct when the events are still clear in your mind. Learn how to recognise those behaviours that may constitute harassment to report them quickly, and don’t forget that delays may result in the loss of evidence or in the inability to question the alleged offender or witnesses. The sooner you report, the better.
- Provide all relevant information. Your harassment complaint will have a better chance of leading to investigation if you are precise in describing the abusive behaviour. Make sure to be extremely accurate in reporting the events and include as much detail as possible, such as: the name(s) of the alleged offender(s), the date(s) and location(s) these incidents took place, the names of any witnesses, and any other documentary evidence in support of your complaint.
- Be consistent in reporting the facts. The question as to whether harassment has occurred must be determined based on a thorough examination of all the objective circumstances surrounding the events, so make sure you are consistent in the details. The more consistent the report, the more credible it will be in the eyes of the investigators.
- Seek protection against retaliation. Organisational policies generally impose an obligation on the organisation to take interim protective measures which may include such things as: physical separation between you and the alleged offender, the institution of flexible working arrangements, and granting special or administrative leave with full pay to either the alleged offender or to the alleged victim, depending on the circumstances of the case.
- Keep inquiring about the status of your complaint. Harassment investigations, especially when the cases are very complex, can be quite time-consuming, and there is no requirement to inform the complainant of the progress of the investigation. However, keep in mind that most internal policies of international organisations provide time limits for investigations to make a finding or reach a conclusion. Delays by the administration in carrying out investigations can lead to an increase moral damages.
- Seek legal advice. Each case of harassment, the impact of the conduct on an individual, and how to remedy the situation, is unique. Please contact us if you would like to discuss your case in more detail or get preliminary advice on the merits of your case and potential next steps.
 See ILOAT Judgment Nos. 3250, 4111, 4243 and 4345.