Psychological Harassment During a Pandemic: Pitfalls to Avoid

Authors: Dr. Marie-Ève Sens et Me Sabrina Vigneau-Courchesne

It will now almost be two (2) years that we’ve been confronted with the Covid-19 pandemic. This health crisis has been catastrophic in many ways and has had a global reach. The mentalhealth of a large number of individuals has been affected. Although the eventual return to the office on February 28 is seen as a victory against this pandemic, it would be false to believe that we will find the world as we left it.

Indeed, a recent study led by a group of researchers at the Queensland Centre for Mental Health Research measured the impact of the pandemic on mental health disorders and their findings are worrying. The prevalence of anxiety and depression disorders has increased at a rapid rate among all age groups, but particularly among young adults and women. Thus, in 2020, in Canada, the prevalence of anxiety disorders increased by more than 19% and more than 22% with respect to depression disorders¹.

This finding is even more alarming given that a prepandemic study in the Global Burden of Diseases, conducted in 2019, showed that anxiety and depression disorders were among the top 25 diseases and injuries contributing to the global burden of disease². In other words, anxiety and depression disorders are among the diseases have the greatest impact on individual life expectancy and mortality throughout the world.

As shown by the results of the study of the researchers at Queensland Centre for Mental Health Research, it seems clear that the stress experienced over the last two years has had profound repercussions on individuals, contributing as much to the development of mental health disorders as to the exacerbation of disorders already present. Therefore, it is possible that we will find individuals more stressed, rendered vulnerable by the pandemic.

Unfortunately, in addition to the impacts that anxiety and depression disorders can have on the personal lives of those affected, the repercussions can extend to their professional lives as well. Indeed, individuals rendered vulnerable by these disorders can experience difficulties when confronted with stressful situations, such as a return to work in person after two years of lockdowns. Under such circumstances, we must anticipate that certain employees will lack resources to tackle their new daily life at work and will experience even more psychological distress.

One must understand that psychological distress manifests in many ways depending on the individual. For example, people suffering from anxiety or depression disorders can experience sleep, concentration, and memory problems. Furthermore, isolation, absenteeism, low morale, an increase in mistakes as well as a reduction in performance can represent manifestations of employee psychological distress. In certain cases, substance abuse issues can also occur. An employee experiencing psychological distress can experience unusual emotional reactions, mood swings and irritability.

Certain behavioural manifestations of psychological distress, such as those described above, represent risk factors associated with the emergence of conflicts, even harassment, especially since the victims and the alleged harassers have potentially been rendered vulnerable by the pandemic. For example, a manager, fatigued by insomnia caused by an anxiety disorder, could have an uncharacteristically strong emotional reaction to an employee arriving late. If this type of reaction persists or happens frequently, it could be thatcertain employees will see their manager as intimidating, rude, and even as harassing them.

From a legal standpoint, the question therefore arises as to whether mental health disorders, notably anxiety and depression disorders, must be taken into account in the analysis of a psychological harassment complaint. Indeed, it would be dangerous to take into account as the sole point of analysis the perception of the alleged victim, knowing that this point of view is often highly subjective.

The consistent jurisprudence on this subject holds therefore that the perspective of the alleged victim must be considered objectively and that the criterion of analysis of evaluating a complaint will be that of a normally diligent and prudent reasonable person, placed in the same circumstances as the alleged victim. This is referred to as the subjective-objective model.

As an example, in the Ville de Montreal decision, the arbitrator Hamelin recalls that it is necessary to ensure that a character trait or mental illness of the alleged victim is not “at the origin of the triggering of the evolution and the persistence of the conduct complained of”³ [our translation]. Always keeping in mind not to diagnose, the Superior Court also determined that the absence of self-criticism and a clearly exaggerated appreciation of the facts did not fit with the perspective of the reasonable person⁴.

Therefore, when one alleges, rightly or wrongly that the alleged victim shows particular characteristics such as hypersensitivity⁵ or even mental illness such as autism⁶ or a slight intellectual disability⁷, these characteristics do not alter the parameters fo the analysis. The criterion of analysis of the reasonably and normally informed, diligent and prudent person placed in the same circumstances remains the same.

In the Wafa Allouch⁸ decision, which despite dating from 2016 is still considered authoritative, the arbitrator Marc Gravel outlined the profile of the reasonable person as follows:

• [466] After sober reflection, the arbitrator, having reviewed the jurisprudence and the doctrine in similar matters, comes to the conclusion that if they must, in their role as decision maker, weigh the evidence of psychological harassment, they must do it using a model that is from the viewpoint of the reasonable person, sufficiently informed of their rights, who is neither hypersensitive nor excessively vindictive, aggressive, paranoid, schizophrenic⁹, that the extent of the alleged harassment must be evaluated [our translation].

Furthermore, in the decision Centre hospitalier régional de Trois-Rivières (Pavillon Saint-Joseph)¹⁰, an arbitration decision considered as a definitive authority in psychological harassment, the arbitrator François Hamelin distinguishes the concept of psychological harassment from certain situations which may resemble it, but which are completely distinct from it, notably situations of conflict and the exercise of management rights, but also victimization and paranoia disorders.

What about stress caused by Covid? Should it be taken into consideration?

The answer to this question involves analysis on a case-by-case basis, but the a priori answer would be no. In a context outside the pandemic, it has already been acknowledged by the courts that certain workplaces or management styles can cause stress, inconveniences, dissatisfaction, and upheaval, while this may not necessarily result in “vexatious conduct” in the sense of the Quebec Act Respecting Labour Standards (RLRQ, chapter N-1.1)¹¹.

In the Gosselin¹² decision, a recent decision of the Public Service Commission, the complainant claimed that they had suffered psychological harassment on the part of their immediate superior. They notably claimed that they had demanded that they return to the office even though Quebec City was in the “orange” zone, and that this therefore caused a “violation of their personal integrity due to the lack of directives regarding work conditions at the employer’s workplaces [our translation]”¹³. The Commission had concluded an absence of psychological harassment, noting with respect to the evidence that the complainant had made no effort to obtain a reliable Internet connection during the pandemic. In requiring the complainant to return to the office, the Commission concluded that the complainant’s superior had exercised their right of management in a reasonable manner by applying a government directive seeking that officials reintegrate in their workplace if they were unable to complete their tasks by working remotely, which was the case with the complainant.

It will therefore be interesting to follow future decisions to see how stress and the inconveniences caused by the pandemic will be considered in the context of psychological harassment. This viewpoint is a legal one and applies to the assessment of psychological harassment complaints, but it goes without saying that counselors and Human Resources counselors can adopt a different angle in order to defuse conflicts at an earlier stage.

Conclusion

Despite a return to a semblance of normalcy, it is likely that the Covid-19 pandemic will not leave us unscathed. The increase in the prevalence of anxiety and depression disorders is very real throughout the world. In this sense, it will be important to pay close attention to manifestations of psychological distress in the individuals around us. Il will be even more important to attempt to defuse situations of conflict caused by the stress of the pandemic and the return to work in order to prevent psychological harassment claims.

Latitude Management is a multidisciplinary firm with a focus on investigations, mediations, training and consultation regarding issues arising from psychological harassment in the workplace. In order to offer to their clients a complete service, an organizational psychological has recently joined the Latitude Management team. Please do not hesitate to contact us to learn more.