The Obligations of International Organisations When Investigating on Informal Complaints of Harassment
On February 2, 2011, the ILO Tribunal rendered two judgments dealing with cases of harassment within international organisations. The Tribunal ruled that the claims challenging the sufficiency of the investigations carried out by the organisation at stake were admissible and allocated damages to the applicants, although the complaints were initially lodged in an informal way only.
This article will therefore assess to which extent international organizations have to comply with specific obligations whenever facing mere informal complaints, notably on harassment allegations.
These two cases involved the same alleged harasser and the internal inquiries initiated by the WHO suffered substantial delays. In the end, the internal inquiries could not even be completed due to serious health problems encountered by the alleged harasser. Given these particular circumstances, the WHO decided to allocate both plaintiffs an amount of approximately 7,700 €. This amount was deemed insufficient by the plaintiffs who subsequently decided to seize the ILO Tribunal.
The I LO Tribunal decided that the in view of the serious allegations brought against the alleged harasser and the substantial delays in the investigations, the WHO had failed to adequately deal with the informal complaints of the applicants, as imposed by the internal process of the organization in case of allegations of misconduct and harassment. Moreover, the ILO Tribunal stated that by failing to conduct an investigation in a timely manner after a formal complaint had been filed and then by interrupting the investigation, the WHO had breached its duty of care toward the applicants and had caused them serious injury (Judgment No. 2973, § 18 and Judgment No. 2975, § 13).
In explaining its reasoning, the ILO Tribunal referred to previous case-law where it had stated that:
“an accusation of harassment requires that an international organization both investigate the matter thoroughly and accord full due process and protection to the person accused. Its duty to a person who makes a claim of harassment requires that the claim be investigated both promptly and thoroughly”. (ILO Tribunal, Judgments of July 11, 2007, No. 2642, § 8 and of July 12, 2006, No. 2552, § 3).
Furthermore, the ILO Tribunal pointed out that since this organization had its own formal process for harassment allegations at headquarters, it was obliged to continue the investigation in accordance with the established process when dealing with harassment complaints (Judgment No; 2973, §§ 13-14). This obligation to correctly apply existing internal regulations was also mentioned by the ILO Tribunal in another case concerning the International Atomic Energy Agency (IAEA), where it held:
“The complainant was entitled to have her grievance dealt with in accordance with the policy and the procedures laid down in Appendix G to the Staff Regulations and Staff Rules”. (ILO Tribunal, Judgment of July 8, 2010, No. 2910, § 13).
For an international organization, not respecting its own applicable internal rules in case of harassment allegations constitutes not only a breach of its own policy and rules but also a breach of the general duty of care due by all international organizations towards their staff. This duty includes the obligation to ensure that allegations of harassment are “properly and promptly investigated” (ILO Tribunal, Judgment of July 8, 2010, No. 2910, § 13 and of July 11, 2007, No. 2636, § 28).
A similar reasoning applies for European institutions, where the assistance duty under Article 24 of the Staff Regulations of Officials of the European Union notably includes the duty of the administration to investigate seriously, quickly and confidentially sexual harassment complaints and to inform the plaintiff of the outcome of his/her complaint (CFI, December 5, 2000, Campogrande c/ Commission, case T-136/98, RecFP, p. II-1225, § 43).
The various case-law findings referred to above should be agreed with in principle. Nevertheless, the statement of the ILO Tribunal according to which informal complaints should be dealt with in a manner consistent with the organization's own harassment policy, while an investigation should be conducted in a timely manner when a formal complaint has been filed should be interpreted very carefully.
It is indeed unclear whether the ILO Tribunal makes a distinction between the obligations of the institution confronted with an informal complaint, on the one hand, (oral claims, letter or e-mail to a supervisor or head of department), and a formal complaint, on the other hand (written complaint addressed to, for example in this case, the WHO Headquarters Grievance Panel).
In fact, the ILO judgments should be interpreted in such a way that whenever mere informal harassment complaints/allegations are concerned, the obligation of an international organization only consists in effectively applying its own internal rules, provided that such rules contain specific guidance in case of informal complaints/allegations. Breaching that obligation of applying its own internal rules would result in an infringement of the general duty of care of the organization towards its staff.
On the other hand, if an organization's internal harassment policy only contains guidance towards official complaints (as defined by the organization's policy), it cannot be stated that the organization has infringed its general duty of care towards the alleged victim in case it has not promptly reacted and initiated a thorough investigation following a mere informal complaint/allegation.
The notion of an official harassment complaint (not to be confused with a complaint against an act adversely affecting an official), is likely to vary from one institution to another. For example, it can take the form of a letter to the Director General of the organization (see ILO Tribunal, Judgment of July 11, 2007, No. 2636), a written memorandum to the Division of Personnel (see ILO Tribunal, Judgments of July 12, 2006, No. 2552 and of July 8, 2010, No. 2910) or a complaint before a Grievance Panel (as in the commented judgments).
International organizations should therefore make sure that in case their internal rules do not provide different processes to treat informal and formal complaints, they at least provide a clear definition of what constitutes an official harassment complaint, i.e. under what form and to whom or to which body alleged victims of harassment should address their grievances.
ABOUT THE AUTHOR: Bert Theeuwes & François Pons
Bertold Theeuwes is the head of the diplomatic and international public law practice of Lorenz. He regularly represents international organizations, diplomatic missions, embassies, diplomats and civil servants and advises on immunity issues, benefits issues as well as international civil service issues (representing staff members of international organizations in internal procedures in application of their staff regulations).
François Pons is an associate in the diplomatic and international public law practice of Lorenz.
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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.