The impact of COVID-19 on employment disputes

Our working environments have changed. My goal in this post is to avoid using the most popular terms of 2020, such as ‘unprecedented’ or ‘pivot’, but it goes without saying that we all have to continually adapt to more and more working online.

Let me offer three observations on how the pandemic has affected work culture, and therefore what may cause an employment dispute.

Seen to be working

General consensus from friends and colleagues seems to be that people have been working longer and harder from their home office. Among other reasons, this no doubt results from the fact that we are accountable by our emails, and we have been responding to more emails no matter what time it is.

For those who have returned to offices, you might be faced with the dilemma that you actually quite enjoyed working from home, and even though that is now an accepted practice, you are encouraged to come in to increase in-person collaboration and a return to ‘normalcy’. Others will be glad to have returned to having social contact and no interruptions from kids or the temptations of a well-stocked fridge. In any case, it seems that the future will forever be a mix of people in the office and others dialling in.

This begs the question, do we really need to physically be in the office, every day? In an ideal world, as long as the work is done, our managers and directors should have no cause for complaint. Presenteeism (feeling like you have to show up to work even if you are sick and even if you do not get as much done as a result) should, hopefully, be a thing of the past. Despite this, time will tell whether people feel the need to be back if everyone else is coming back, whether we can really be effective if only half the team is in the room for a meeting, and if there are more efficient ways to work together.

This will most likely be dictated by your manager’s preferences. But, pay extra attention to having records of meetings and inclusion of the right team members in meetings. Clear lines of communications are essential to maintaining a happy working team, in person or online.

Harassment

The UN Secretary-General Bulletin on discrimination, harassment, including sexual harassment, and abuse of authority (ST/SGB/2019/8) defines harassment as “any unwelcome conduct that might reasonably be expected or be perfected to cause offence or humiliation to another person, when such conduct interferes with work or creates an intimidated, hostile or offensive work environment.”

There is no additional definition of harassment in an online environment in the Bulletin, although a number of definitions exist for cyber bullying outside the international employment law context. This generally refers to hurtful, humiliating or abusive behaviour over texts, emails, messages or any other online forum.

Whether harassment can be established requires examination of specific incidents as well as the context in which they occurred. On the one hand, blatant incidents such as bad behaviour in an online meeting, mistakes with sharing personal and private screens or emails sent to unintended recipients would be clear examples of unacceptable behaviour. On the other hand, it may be harder to establish online harassment as emails and messages always need to be put in context and patterns may take longer to identify. It is also likely that the victim does not have a complete picture and that any formal complaint will need to include a request for the production of emails from other staff members’ inboxes to establish things like being excluded and people talking about you without your knowledge. Overall, this means that the victim is probably suffering over a greater period of time.

So what can you do if you feel victimised or are aware of unwelcome behaviour towards other staff? Speak up. Do not respond to messages that make you feel upset or harassed, keep a record and report the behaviour to your managers, Ombudsperson or Ethics Office, depending on which option provides you the most comfort and security.

Restructuring

International organisations are always being reorganised and restructured – this is the prerogative of the organisation but also reflects changing budgets, business needs and being responsive to the directions of States Parties.

Some of these processes may have started in your team before the pandemic, bringing them to an abrupt halt, requiring adjustments or highlighting the difficulty of relocation with travel restrictions. Organisations have introduced COVID-19 policies to deal with accrual of Rest & Recuperation breaks and per diem payments to those who have been in hardship locations for longer than usual. Some organisations have also realised that certain posts can be conducted without a physical present in another country, or that team members are performing higher duties even where reclassification of post was not contemplated.

From a disputes perspective, restructuring has generally raised a conundrum. Employees reasonably expect some more common sense and flexibility from their administration, especially in relation to relocations and reassignments. However, where these issues were agreed between the employee and organisation before the pandemic, in accordance with the usual procedures, the organisation does not have any other obligation towards the employee. Without any clear breach of the organisation’s rules, or obvious misrepresentation to the employee, it is highly unlikely that there would be any legal basis to challenge restructuring or relocation decisions. If an employee is concerned or upset with their relocation arrangements, they should identify the prejudice or negative impact they will suffer, consider what would be a workable interim arrangement, and negotiate with their administration.

Employees should generally expect that more restructuring might take place in the next few years as organisations adapt to the post-COVID reality and how that has impacted the organisation’s short- and long-term objectives.