26 March 2020|
Harassment on grounds of other protected characteristics (eg race)
Remote working and COVID-19: will bullying and discrimination of those working from home increase?
Many individuals are now opting to work from home as a means of enforcing social distance to mitigate the effects of the coronavirus (“COVID-19”) pandemic. However, it is essential for employees and employers to remain cognisant of workplace harassment and discrimination that can still take place remotely.
Is it possible to be ‘workplace bullied’ if working from home?
In short: yes. It is well-established that bullying behaviour in the workplace need not be conducted in person to be considered a form of employer harassment or discrimination, and there are various cases demonstrating the means by which harassers and discriminators might adapt their behaviours towards remote workers.
An employer’s liability for the conduct of their employees is not waived simply because a victim is working from home. If such conduct is related to a protected characteristic and done “in the course of employment” (Section 109(1), Equality Act 2010) then the employer will be liable for the discriminatory detriment that the worker suffers. An employer can also be vicariously liable under the Protection from Harassment Act 1997 (“PHA”) if an employee is harassed even where it is unrelated to a protected characteristic. Under the PHA, the conduct must occur in the course of employment and there must be two or more instances of harassment/bullying that are sufficiently connected).
(Further information on harassment is available on Farore Law’s Mini Guide, ‘Harassment claims and offences’.)
When can bullying/harassment occur if a person is working from home?
Take the following examples where the member(s) of staff used remote technology to harass and bully:
Two employees of Carphone Warehouse obtained their manager’s mobile phone and updated his Facebook status to “Finally came out of the closet. I am gay and proud.” The manager successfully sued Carphone Warehouse for harassment on the grounds of sexual orientation as the company was liable for the conduct of the two employees. (Otomewo v Carphone Warehouse Ltd  EWCA Civ 1336)
An employee at TeleTech posted offensive comments about his colleague on Facebook alluding to her sexual promiscuity and the employer, including the remark: “quick question who in Teletech has [the colleague] not tried to fuck? She does get around!” The Tribunal held that it was reasonable for the employer to find that the employee had harassed his colleague though such comments and upheld the employer’s decision to dismiss the employee. (Teggart v TeleTech UK Ltd  NIIT 00704)
What about micro-management of staff and checking up on them?
Senior staff at Richemont UK (a luxury goods holding company that owns brands such as Cartier and Mont Blanc) instructed a professional surveillance company to conduct covert surveillance on a black employee – who had made a claim of race discrimination against the employer – on suspicion that the employee was being dishonest about her state of health. The Employment Tribunal held this to be a form of victimisation. Of note is the fact that this was the first time in the senior staff member’s 20-year HR career that she had instructed an external surveillance company in this matter. (Ms C Spragg v Richemont UK Ltd  UKET 2206044/2017)
Recent EAT case law has also suggested that attempts to micro-manage an individual who is working from home is, depending on the context, quite capable of amounting to discrimination or victimisation. (Mrs S Solomon v University of Hertfordshire and Paul Hammond EAT 0066/19/DA)
It is therefore important that employees are alive to the possibility that remote bullying can occur and employers are alive to the issue of not targeting one remote worker over another. Micro-management conducted under the guise of reasonable employee monitoring and assessment is more likely to be regarded as harassment/bullying if there is good evidence that the surveillance and checking the particular member of staff is beyond what is normal for others. Tracking of times remote workers log on will be a standard process in many companies and records of this will be kept. How companies react to one person not logging on for long enough and/or on enough occasions will be of interest – those in-built biases that afflict some may come to the fore. Do some people assume women are more likely to be caring for children or attending to household chores than a man? Are there subconscious biases about age, race and/or nationality that impact the views of the manager when they decide to tackle the remote worker about their input during the day?
Harassment can also be subtle and often more passive when remote. For example, it would be possible for a senior employee to create an “intimidating, hostile, degrading, humiliating or offensive environment” (Section 26, Equality Act 2010) for their colleague by neglecting to copy them in emails or invite them to online meetings – or even ignoring them outright when they do make efforts to contribute from afar. We should perhaps all be particularly conscious that it is easier to isolate a member of staff remotely. What is taking place without them may not be as readily visible.
Farore Law believes cases of bullying and discrimination of remote workers may well increase in line with the number of people now working from home because of COVID-19. Access to HR assistance may be reduced because of the current crisis and fear of loss of employment may prompt fewer to complain until the current situation is resolved. Employees would be advised to keep notes of unusual behaviour and employers would be advised to put in place specific policies and practices to ensure managers do not start manifesting potentially unlawful behaviours more likely to arise with remote working.