What are employer responsibilities for protecting workers outside the ‘typical’ work environment?
By now, most people have seen the clip: CityNews reporter Shauna Hunt was filming a routine fan interview after a Toronto FC soccer game when a man started shouting sexually explicit, harassing taunts at her.
Hunt turned and confronted other men nearby, one of whom supported the taunts, and the video soon went viral. While celebrated by many observers, Hunt’s reaction had the potential to escalate the situation, said Alan Quilley, president of Safety Results in Edmonton.
“That could have easily turned violent, and those kinds of things do when people get emotional.”
And whether it’s against harassment, physical violence, taunts or bullying, employers have a responsibility to protect employees, according to Adrian Miedema, partner in the employment group and OHS specialist at Dentons in Toronto.
“In Ontario, just as an example, the definition of workplace is any land, premises, location or thing at, upon, in or near which a worker works. So, basically, any place a worker works is a workplace. So your duties as an employer to provide a safe workplace extend to any place that your employees are working,” he said. “The mere fact that an employee is not working in your office or in your plant does not mean that you don’t have any safety responsibilities to them.”
Legal considerations
In a situation of sexual harassment, such as the one Hunt faced, employers have a duty to protect the employee — whether she’s in the office or not, said Miedema.
“Under occupational health and safety legislation, it’s the same thing — because the workplace extends to any place that you work, (the employer’s) duties with respect to harassment extend to every place a worker works.”
Finding yourself on the wrong side of OHS legislation is one potential consequence but, with sexual harassment, it can also become a human rights code issue because you’re dealing with gender- or sex-based harassment or discrimination, said Miedema.
“The employee, like a journalist, who is sent out and sexually harassed by someone on the street or someone that they’re interviewing, because that’s happening in the course of their employment, the person could file a human rights (complaint) against their own employer, saying that they didn’t take adequate steps to prevent the harassment… that’s potentially a viable complaint if the employer didn’t take appropriate steps to avoid harassment.”
Another issue that comes up is that of negative publicity and reputational issues, he said. With human rights complaints in particular, if it goes all the way to a decision, it becomes public record.
“All the details are there for the world to see. So it can also become a reputational issue for employers when these issues become publicly known,” he said.
It’s even a possibility an employer could claim constructive dismissal if violence or harassment is an ongoing pattern, said Miedema.
“I suppose an employee, if they’re subjected to harassment or violence on a regular basis at their job, could claim that they’ve been constructively (dismissed) — that the employer had a duty to provide a safe workplace and because of the violence or harassment that they’re persistently facing, that it’s an intolerable work environment.”
Providing protection
To protect the employee — and protect the organization itself from liability — employers need to provide training for employees as to how they should respond in those situations, said Miedema.
“Number one, make sure that the worker has been properly trained in how to respond to or deal with crisis de-escalation techniques and things like that. Number two is if you think there is a substantial risk of violence and you’re sending people in, then you probably need to send security along,” he said.
Anytime an employer is sending an employee out into the community, it can no longer control her work environment, said Quilley.
A small proportion of the population has some real behavioural problems, he said, and it’s important to have a strategy around that.
“This isn’t a new issue, even though it seems in the last decade there’s been a clearer understanding that this is an issue,” he said.
Preventing issues from arising has a lot to do with training, awareness and strategy on the employer’s part, said Quilley, as well as communication between the employer and employee.
Part of the responsibility also falls on the employee to communicate when a situation is unsafe or he is not comfortable going alone, said Glenn French, president and CEO of the Canadian Initiative on Workplace Violence in Toronto.
“I’m always shocked at how many health-care providers, social workers or maybe home nurses will go into a home with somebody who may be suffering from a mental health disability, and they’ll go by themselves,” he said.
“They somehow think that because they have mental health or medical training, that they’re immune.”
But any employee, if she’s being harassed, threatened or intimidated in any way, does not have to stay there, he said.
“I find people will stand their ground and, unnecessarily, because then it just escalates, and it may make matters worse,” said French. “They can come back at another time or they can report it in some way.”
Best practices
It’s quite frightening how few employers have any sort of protocol to make sure off-site employees are OK, said French.
“People who are doing visitations or working in the community in some way, most certainly they always should have some kind of check-in protocol, whether that could be once every couple of hours… different organizations do it differently.”
There are certainly circumstances where workers should be accompanied or at least have an easy way to call the office or call for help. And if an employee feels unsafe in a particular situation, employers should make it clear he doesn’t have to do it.
“Don’t do something that you are fearful to do. And I say that because people don’t often trust their gut reaction that ‘There’s something intimidating here,’” he said.
One potential precaution employers could suggest is for the worker to make a phone call back to the office, particularly if she is visiting a client’s home or somewhere that is not a public place, he said.
“It telegraphs to the other individual, the person you’re visiting, that someone’s expecting you and they know where you are,” he said.
And if there is a client or customer who harasses employees, there are cases where employers should take action.
“If people are being harassed, I think there’s a responsibility on the part of an employer — some people may disagree with this — if a customer or a client is harassing or belittling, the employer I think should come back to that customer and have a discussion about that,” he said.
“I know that gets a little dicey when you have someone who has a mental health or some kind of medical condition but, in many circumstances, I think the employers need to follow up and red flag that address (or that customer).”
