A working reality

Harassment in the workplace is no new phenomenon. But what really constitutes harassment? Claudia Calleja explores this invisible yet destructive presence that, for some, may turn the working environment into an organised hell-hole.

Most people spend at least eight of their waking hours at work surrounded by colleagues or clients.

While few spring out of bed to get to work, some dread the actual day of work ahead and others drive to work in fear of the people they have to meet there.

Such people are usually the victims of harassment, victimisation, office politics... call it what you will. These people's working life is made miserable by another person.

Jeanne was one of these people.

A couple of months after starting her new job in a legal firm she began to notice that something was changing.

She became aware that people were acting shifty around her. Her colleagues would speak in a cluster and change the subject when she stepped into the room.

One day, when she walked into the office she noticed that her colleagues were speaking to the office head. When they noticed her they quietly dispersed back to their desks.

Harassment was not a word Jeanne had ever associated with work. Although she felt that something was not right, she was still not aware that she was being perceived by some of her co-workers as the problem.

"One morning, when my colleagues had not yet arrived and I was alone at the office, the head called me to his office and told me that my colleagues had been complaining that I was not taking on my share of the workload.

"I felt offended and enraged. I defended my case with my boss who, thankfully, seemed to see my point as my work spoke for itself.

"I was hurt and insulted that my colleagues had not brought up the subject with me before taking it to the boss," she said. Jeanne explained that for some time the atmosphere was tense at the office. Then, after some time, she decided to confront who she thought was the "ring leader". Although Jeanne thought about taking the matter to the employer she preferred to tackle it on a one-to-one basis.

"They were being petty and I felt that by going to the employer I would be being petty too."

So, when this continuous, unfair and unjustified behaviour persisted, she confronted the ring leader in the presence of the office head.

"I felt scrutinised and felt that I had to watch my back from certain colleagues. The problem was that I could not prove my case but had to let my work speak for itself," Jeanne said. Although the issue had been brought up in the office, Jeanne does not feel that it has been completely resolved. She knows that she did nothing to deserve such treatment and, had she not faced it, could have ended with her leaving or losing her job.

"At the time I felt ganged up on and back-stabbed. Now, my relationship with these colleagues is somewhat indifferent as I always watch my back, weigh my words and keep my distance," she said.

Name and details have been changed to protect the person's identity.

Power games

Politics is linked to power and organisations are structures which allow an exhibition of power.

Organisational psychologist Vincent Cassar explained that harassment is a direct effect of power that is not legitimate. It is any kind of coercive behaviour toward others which is an abuse of position, power status or role in the organisation.

A person who harasses often wants to convey a message of power and exposing someone else's weakness may make him or her feel stronger.

There are various means of harassment, which has been referred to as victimisation. Harassment may range from extremes such as violence to less obvious forms such as name calling and even ignoring.

"People play a lot of games in an attempt to get others to do something. Although a person may not directly harass someone by shouting, giving a person an impossible task or making that person feel useless are indirect, and equally damaging, forms of victimisation," Dr Cassar said.

He stressed that because of the complex and sensitive nature of the topic, each case has to be looked at on its own individual merits.

The problem with harassment, Dr Cassar emphasised, is not the actual behaviour as such but the effect which that behaviour has on the victim. Because different people may regard different things to be harassment, personality plays a great part in outlining this subjective term.

Whereas someone might perceive a tap on the shoulder as "no big deal", another person may find it offensive or invasive. This often depends on the relationship between the individuals as a word or gesture may be acceptable from one person but alarming from another.

Dr Cassar explained that the structure of an organisation also plays an important role when it comes to controlling harassment at the workplace. Hierarchical structures tend to encourage such behaviour, which is minimised when the structure is more linear.

"It's difficult to capture statistics on harassment as it falls under what I call 'the dark secrets of the organisation'. We know that harassment is a very common phenomenon that may have a long-term effect on the victim but it is very difficult to define legally and even harder to prove in court.

"Although it is a reality, people do not talk about it and a person being harassed may find it difficult to speak up due to the fear of being judged, perceived as weak or even out of the fear of losing face or losing his or her job. This suffering in silence makes it even more difficult to identify the occurrence of such cases," Dr Cassar said.

He also explained that the effects of harassment on a victim vary. It may lead to a high degree of job dissatisfaction and low motivation and studies show that, in extreme cases, long term harassment may lead to post-traumatic stress disorder.

People may even leave their job and studies show that, in cases where the employee is harassed by the employer, the chances of finding another job are low.

Dr Cassar argued that part of the law should be dedicated to psycho-social problems at work. The law on health and safety groups psycho-social factors with physical risk factors under which harassment falls.

"Psycho-social factors deserve to be separated from physical factors because they are, in essence, of a different nature and ought to be approached as such," he said.

Workplace culture

As outlined in an article Harassment At Work, published by the Chartered Institute of Personnel and Development, harassment thrives in a workplace culture where it is not challenged but ignored and an organisation should not assume there are no problems just because no complaints have been lodged.

Jacqueline Gauci and Christopher Vella, from the Commercial Services Bureau (CSB) Recruitment Agency, get to meet many people who are looking to change their job and recognise that it is not easy for these people to speak about subjects such as harassment or discrimination.

Ms Gauci, a recruitment executive, explained that through her experience she has come to believe that many employers look at the bottom line, such as qualifications and payment, but do not really look into how a newly recruited employee would fit into the work environment.

"A lot of these harassment situations can be avoided if the recruiting process is done correctly. Employers don't usually stop to think about what will happen once a person is in the workplace," she said.

She added that it was difficult to pick up certain personality traits during an interview as job candidates are usually on their best behaviour.

Mr Vella, a businesses development executive, said that the organisation plays an important role in combating harassment at the work place. One of the problems he saw was that small local companies in particular tend to underestimate the importance of team-building.

The mentality is that, so long as an employee does his work, all is fine when there is much more than complete work to a happy work environment.

The Malta Employers' Association stressed the importance for companies of having a harassment policy. An employee who feels harassed in any way would benefit from having a policy that sets out the procedure of dealing with harassment and that shows him or her how to go about making a complaint. A policy should also safeguard against false accusations.

The importance of the company's role does not end with having a policy. It is important that the company explains, informs and trains its employees about it.

Office personalities

The work place is made up of people and with people come personalities that have to be dealt with. Commercial Services Bureau helped identify various types of office personalities. Some of these personalities are:

The steamroller - who is domineering and permanently irritated.

The old stick-in-the-mud - who does not tolerate change of any sort.

The gossiper - who thrives on spreading rumours and half truths.

The critic - whose aim in life is to find fault in everything.

The accuser - who makes an art out of shifting blame onto others.

The wet blanket - who is as pessimistic as it can get.

The bleeding heart - who would do anything asked of him or her then complain of the work load.

The procrastinator - whose aim is to work as little as possible.

In the eyes of the law

Harassment is an offence and the Employment and Industrial Relations Act stipulates that anyone found guilty of it is liable to a fine of up to Lm1,000 or a maximum imprisonment of six months.

The question is: What constitutes harassment in the eyes of Maltese law?

The law says: "It shall not be lawful for an employer or an employee to harass another employee or to harass the employer by subjecting such person to any unwelcome act, request or conduct [...] which in respect of that person is based on sexual discrimination and which could reasonably be regarded as offensive, humiliating or intimidating to such person".

Does this mean that harassment is limited to "sexual discrimination"?

Lawyer Andrew Borg Cardona explained that, although the law is mainly concerned with sexual harassment, harassment generally is taken to mean any form of behaviour which is unwelcome to the person concerned. However, taking any case to litigation that is based on non-sexual harassment would not be easy, given the qualifier about "sexual discrimination" that the law uses.

There is always the underlying trend in the law that people should be treated decently and equally.

In fact, the law provides a specific definition of discriminatory treatment as including discrimination made on the basis of marital status, pregnancy or potential pregnancy, sex, colour, disability, religious conviction, political opinion or membership in a trade union or in an employers' association.

The broad terms of this definition might allow some form of complaint about victimisation or harassment to be made, Dr Borg Cardona said.

Because harassment is difficult to pin down, it is difficult to define in a legal context. One of the questions surrounding the topic is: Who is responsible?

Dr Borg Cardona explained that primarily it is the person who is harassing that is responsible but there is also a significant residual responsibility on the part of the employer.

"An employer, who does not himself harass, may be liable towards an employee because s/he allowed the system to be in place which allowed harassment to take place.

"One of the areas in which protection against harassment will be developed is the area of what is loosely described as 'constructive dismissal'. This is when someone leaves his or her job because the situation became intolerable even if the employer did not actually dismiss the employee.

"This concept is somewhat 'cutting edge', but if it can be shown that the employer was negligent to the point of not caring about what was happening to an employee, the employer might be held to have repudiated the contract of employment to the extent of constructive dismissal being deemed to have taken place."

The employer has to be proactive so if s/he knows of something and does not do anything about it, s/he might become legally responsible.

If one feels discriminated against or harassed what legal action is possible?

According to Dr Borg Cardona the first step for a "victim of harassment" is to recognise that they are being abused and by whom.

Next the individual is to establish whether the employer is involved and participating.

If this results to be the case, then go to a trade union, if possible. A lawyer would be the next option. The lawyer may then take the case before the courts or the Industrial Tribunal.

Although, Dr Borg Cardona explained, theoretically a case can be taken to court, in practice it is different because it is not easy to prove that one is being "ganged up against".

"The court needs evidence which, in a work place, might be manifested by a person not being given a promotion, work increment or pay rise. The tribunal tends to be a bit looser on the rules of evidence and would probably be a more effective forum," he said.

In terms of litigation, it is the tribunal which would deal with such matters. The law states that a person who alleges harassment may lodge a complaint to the tribunal within four months of the alleged event.

If the tribunal is satisfied that the complaint is justified, it may take measures and order the payment of compensation to the aggrieved party.

Due to the tribunal's jurisdictional limitations, a victim claiming damages may refer the case to the Civil Court.

If all else fails, Dr Borg Cardona said, there is the Department of Industrial and Employment Relations that could be asked to investigate the complaint being raised.

He also explained that the law protects the individual against being victimised for having made a complaint to the lawful authorities or for initiating any proceedings.

European Union law

As far as European Union law is concerned issues surrounding harassment branched out of legislation on sexual discrimination, lawyer Matthew Brincat explained.

The Equal Treatment Directive of 1976 targeted discrimination on the basis of gender and spoke about the implementation of the principle of equal treatment. In 2000, two directives were issued to broaden the scope of discrimination. The Race Directive covered discrimination on the basis of racial or ethnic origin and the General Framework Directive covered the grounds of religion, disability, age and sexual orientation. The 2000 directives spoke about harassment as a form of discrimination with the purpose of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment.

The directive adds that harassment may be defined in accordance with the national laws and practice of member states. In 2002 a new Equal Treatment Directive, which will come into force on October 5, amended the 1976 directive by adding a definition of "harassment" in relation to sexual conduct.