Misconduct in the (cyber) workplace

9 Apr 2020 By Kirsty Churm and Matthew Hardcastle

As the coronavirus pandemic forces most employees to work from home, bullying and harassment may take on a new virtual form, as Kirsty Churm and Matthew Hardcastle explain

Employers and HR managers have a myriad issues to think about during Covid-19, and understandably may even have postulated that #MeToo-related challenges would fall down the list. However, misconduct and harassment risks have not entirely disappeared. They have merely morphed into another form, now largely online. 

Coronavirus means, at least in the immediate future, that for many the way we interact and communicate with each other in the course of work will fundamentally change. Work is largely being conducted remotely where possible; meetings are being held virtually and often via videoconferencing; and a ‘quick chat’ is now more likely to be an electronic message, phone or video call than a brief huddle in the office.

One positive of this, of course, is that the most frequent manifestations of sexual misconduct in the workplace – inappropriate touching and misbehaviour when drunk – will fall away. The risk, however, is that misbehaviour will continue, but will take new and remote forms. 

This widespread move to remote working will provide a test for everyone as the conventional strictures of the workplace fall away. Remote working does not always lead to a reduction in formality, but in many instances – with employers and employees working from hastily repurposed parts of their home – it will. 

Many are grappling with how to cope with coronavirus-related issues on top of their normal workload or balancing childcare with work responsibilities. Others are experiencing the unsettling effect of isolation and vivid health fears. When this cocktail is coupled with the gallows humour that has spread around social media recently, there is a real prospect that colleagues will start to communicate with each other in a way that would have been unthinkable only a month ago. 

Communications may become brusque, abrupt and in some cases sarcastic or difficult to interpret. Professional is becoming increasingly personal. Could we have envisaged the rapid increase in virtual team drinks and socialising, for example, or figures of authority sharing memes, photos and videos, or beginning to use newer forms of social media such as TikTok? From here, it is only a short hop to communication that may be ill-judged or, worse, unwelcome. 

The cadence and delivery of a comment made orally can often signpost the intention behind it, but this is often lost with text-based communications. Understandably, cyber communications can be a challenge for employees and employers alike. If meetings and work conversations are now taking place virtually, the relative anonymity of a screen may adversely affect judgement and behaviour. In times of stress and crisis, emotions can become heightened. Written electronic communications can easily be misinterpreted. From an employer’s point of view, there may be less ‘visibility’ and control around the conduct of staff. 

At the most concerning end, there are also a number of offences that can be committed electronically. These include sexual offences such as exposure; offences such as harassment (where there is a course of conduct); and communication offences, which can be committed when an indecent or grossly offensive message is sent. Communications offences can also include the sending of false information (that the sender knows or believes to be false) if the purpose or intention is to cause anxiety or distress – this would potentially capture false posts about Covid-19.

We all face significant challenges over the coming months, but if businesses and HR managers think harassment and misconduct-type misdemeanours, sexual or not, will not count among them they should think again. 

Wise employers are reminding their managers and employees they must expect that their behaviour will be assessed to the same standards as it would have been in the physical workplace and that the usual policies apply. The risk of misconduct-type allegations remains as omnipresent as ever, albeit in a new guise. 

Kirsty Churm and Matthew Hardcastle are senior associates in the employment and criminal litigation teams respectively at Kingsley Napley

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