What is prohibited conduct?

What? What is alleged to have happened? It could be one or more incidents or a series of incidents. 

Who? Any person may submit a report of prohibited conduct in the workplace or in connection with work against any other person, irrespective of whether such persons have any contractual status with the Organization. Staff members who are alleged to have engaged in prohibited conduct may be subject to disciplinary or other administrative action in accordance with ST/AI/2017/1 (“Unsatisfactory conduct, investigations and the disciplinary process”). Non-staff personnel who are alleged to have engaged in prohibited conduct may be subject to action in accordance with the terms and conditions of the contract governing their services and of other applicable policies regarding non-staff personnel, including possible referral to local authorities.

Where? Any behaviour in the workplace or in connection with work. This could be in the office, in the course of official travel or on official mission, or even in a social setting that has a link to work.

When? There is no time limit for complaints. No preliminary step is required prior to making an official complaint although complainants may opt for informal resolution.​

Relevant provisions:

• ST/SGB/2019/8: 1.9, 1.10, 1.11, 1.12, 1.13; Section 2

“Discrimination is any unfair treatment or arbitrary distinction based on a person’s race, sex, gender, sexual orientation, gender identity, gender expression, religion, nationality, ethnic origin, disability, age, language, social origin or other similar shared characteristics or trait.

Discrimination may be an isolated event affecting one person or a group of persons similarly situated or may manifest itself through harassment or abuse of authority."

There are essentially three elements to consider:

1. What is the treatment (can include omissions)
2. Was it unfair or arbitrary
3. Was the reason for the unfairness / arbitrary distinction based on a protected status.

An example of discrimination would be the refusal to hire someone because of their sexual orientation or religion.

Relevant provisions:

• ST/SGB/2019/8: 1.2

Harassment is defined as:

“Any unwelcome conduct that might reasonably be expected or be perceived to cause offence or humiliation to another person, when such conduct interferes with work or creates an intimidating, hostile or offensive work environment.

Harassment may take the form of words, gestures or actions which tend to annoy, alarm, abuse, demean, intimidate, belittle, humiliate or embarrass another.

Harassment may be directed at one or more persons based on a shared characteristic or trait. Harassment normally implies a series of incidents.”

There are essentially three elements to consider:

1. Was the conduct unwelcome?
2. Was there more than once incident?
3. Was the conduct such that it might reasonably be expected or be perceived to cause offence or humiliation to another person?

An example of harassment would be a staff member regularly shouting and insulting colleagues. The behaviour can be varied rather than be the same behaviour always repeated (e.g. excluding someone improperly from a meeting, improperly removing duties, making insulting jokes etc).

Relevant provisions:

• ST/SGB/2019/8: 1.3, 1.4

Abuse of authority is defined as:

“The improper use of a position of influence, power or authority against another person. This is particularly serious when a person uses their influence, power or authority to improperly influence the career or employment conditions of another, including, but not limited to, appointment, assignment, contract renewal, performance evaluation, working conditions or promotion. Abuse of authority may also include conduct that creates a hostile or offensive work environment which includes, but is not limited to, the use of intimidation, threats, blackmail or coercion. Discrimination and harassment, including sexual harassment, are particularly serious when accompanied by abuse of authority.”

​There are essentially three elements to consider:

1. Did the alleged offender use their influence, power or authority over the affected individual? (this can include inaction as well as actions)
2. Did they do so improperly? - in other words, was the reason for what they did or the manner in which they did it improper.
3. Did it have a negative impact on another person? This need not necessarily be against the person who brought the complaint.

An example of abuse of authority would be refusing a promotion on account of personal dislike for someone. As the definition explains, cases in which there is a direct impact on career prospects (promotion, employment conditions such as pay, hours, contract renewal, performance evaluation and promotion) will be particularly serious cases.

Abuse of authority also covers conduct where the career impact is not necessarily as obvious but as a result of it, the work environment becomes hostile or offensive (e.g. intimidation, threats, coercion, blackmail). An example of that may be a supervisor who repeatedly instructs a staff member to get their lunch or do some other personal task, and that otherwise they will not be allowed to take the leave they requested.

Relevant provisions:

• ST/SGB/2019/8: 1.8

IMPORTANT NOTE: Following the announcement of the Secretary-General on 26 February 2018 the Investigations Division of the Office of Internal Oversight Services (OIOS) has, with immediate effect, taken responsibility for all complaints of sexual harassment and implemented a streamlined, fast-tracked procedure to receive, process and address complaints. A specialized team focusing on the investigation of sexual harassment has been created. Particular attention has been given to increasing the number of female investigators.

The toolkit therefore only covers sexual harassment here for completeness.

The definition of sexual harassment is:

“Sexual harassment is any unwelcome conduct of a sexual nature that might reasonably be expected or be perceived to cause offence or humiliation, when such conduct interferes with work, is made a condition of employment or creates an intimidating, hostile or offensive work environment. Sexual harassment may occur in the workplace or in connection with work.”​

While typically involving a pattern of conduct, sexual harassment may take the form of a single incident. In assessing the reasonableness of expectations or perceptions, the perspective of the person who is the target of the conduct shall be considered.

Sexual harassment is the manifestation of a culture of discrimination and privilege based on unequal gender relations and other power dynamics. Sexual harassment may involve any conduct of a verbal, non-verbal or physical nature, including written and electronic communications. Sexual harassment may occur between persons of the same or different genders, and individuals of any gender can be either the affected individuals or the alleged offenders. Sexual harassment may occur outside the workplace or outside working hours, including during official travel or social functions related to work. Sexual harassment may be perpetrated by any colleague, including a supervisor, a peer or a subordinate. An offender’s status as a supervisor or a senior official may be treated as an aggravating circumstance. Sexual harassment is prohibited under staff rule 1.2 (f) and may also constitute sexual exploitation or abuse under staff rule 1.2 (e).

Relevant provisions:

• ST/SGB/2019/8: 1.5, 1.6, 1.7

We all have different viewpoints, life experience and sensitivities. What might feel like inappropriate behaviour to someone may feel like normal behaviour to someone else. The legal test requires both a subjective and an objective consideration of the conduct. 

This means that if the alleged offender states the behaviour was not intended as harassing, this is not the end of the matter. The intention of the alleged offender is not relevant to the determination of whether specific behaviour constituted harassment. The investigation should focus on how the affected individual perceived the behaviour, whether the behaviour fits the objective criteria and if there was an impact on the working environment. So if, for instance, the affected individual found certain comments and emails from the alleged offender so rude as to be causing offence, and the alleged offender responds they did not intend to be rude in any way, the question for the panel is how the affected individual genuinely perceived the comments and emails, how they are to be judged against UN standards and the UN environment and their impact on the working environment for the affected individual. 

Managers are often confronted with issues arising out of disagreement on work performance or on other work-related issues (e.g. decisions on distribution of functions or restructuring of a unit; decisions on leave or training opportunities). Such matters are normally not considered prohibited conduct and should be dealt with in the context of performance management or other management processes (e.g. prior consultations between staff members and managers about proposed restructuring and/or changes to functions). An administrative decision may, of course, be subject to formal challenge by an affected staff member, initially by a request for management evaluation. The mere fact that a supervisor’s actions, such as the performance appraisal or non-renewal of appointment, are not favourable to a staff member, is not normally, on its own, regarded as prohibited conduct. Other supporting elements are needed. There should be some indication of harassment, abuse of authority or discrimination.

Likewise, allegations of disrespectful behaviour, rude e-mails or derogatory comments may, in some cases, reflect poor communication skills and insensitivity rather than amount to prohibited conduct/misconduct. However, such conduct in the context of work performance or work-related issues may, in some cases, amount to harassment. Certain incidents, when viewed as isolated events, could be regarded as purely work-related issues. However, a series of such incidents, taken together, may be prohibited conduct.

Examples:

Pedro complained that he had been harassed by his supervisor, Maria: Maria stopped him from attending training he had previously attended; she had taken certain work away from him, she was not keeping him informed of the matters pertaining to the Section, whereas she kept other members of the team informed; and she bypassed him and gave instructions to his supervisees directly. Taken together, these actions could possibly amount to harassment / abuse of authority.

Johnson called Ana, who reports to him and has worked in her current role for 20 years, into his office. He said: “I have decided you and I need a change. As of Monday, you will report to Maria-Theresa in another office.  This move was approved by the Head of Department”.  Ana complained that she felt treated like she was completely disposable, and with no regard to her years of loyal service. Although it is understandable that Ana felt humiliated by the situation, abuse of authority does not cover every impolite or awkward interaction.​

Relevant provisions:

• ST/SGB/2019/8: 1.1
• ST/AI/2017/1: 3.3