Category: Duty of Care

What is the point of moral damages, we ask?

Following my recent review of 12-year moral damages at the UNDT, I am sharing my second 12-year review of moral damages at the ILOAT.

Apart from the fact that words such as stress, harassment, institutional harassment, harm to Dignitas, humiliation, suffering, moral injury, severe distress, and retaliation are common denominators for the two lists, one element stands out:

Between 2009 and 2022, the ILO Administrative Tribunal issued 1809 judgments. The Tribunal ordered compensation for moral damages in 504 cases. The percentage of staff who obtained moral damages at the ILOAT was 30%. The total amount disbursed for moral damages is 8,489,800 USD.

During the same period, the UNDT issued 2368 judgments, of which 140 obtained moral damages. The UNDT percentage of moral damages awarded to staff stands at 5.91%. The total approximate amount disbursed was 2,177,000 USD.

The UNDT is quick to dismiss any request for moral damages unless you file dozens of confidential reports testifying to your delicate mental health, ironically rendering your mental health even more fragile and on a therapy-resistant mode.

What, then, is the point of moral damages, we ask?

I found the perfect answer quoting Mr. Yves Renouf, Legal Counsel for the Administration at the World Trade Organization:

“When an international official goes to court, he or she has already made one major step towards removing himself physically or mentally from the organisation for which he or she works. I’m talking for instance about the potential discomfort this official may feel when working with or simply seeing, even occasionally, colleagues whose deeds he/she described in the most unpleasant and sometimes colourful way during the appeal. Someone who has gone through the process of litigating against his/her employer actually changes, and I witnessed it on a number of occasions.

A disgruntled complainant may experience a lasting sentiment of injustice, become withdrawn, lose interest or pride in his/her work or experience difficulties in dealing effectively with colleagues.


Financial compensation has been, since Saxon and Frankish laws, a conventional way to make up for a situation that cannot be mended (such as the loss of a limb).

However, society has evolved since the 16th century and the situation of a staff member in a 21st century international organisation is a complex mix of law, personal interaction and psychology.


The situation where the complainant has been – so to speak – “eating, drinking and breathing” his/her dispute for years is the most psychologically complex. “

Indeed, no amount of money will ever undo the emotional and psychological damage and the permanent scarring inflicted on the staff members.

There can be no justice without holding senior staff personally accountable for their unlawful acts and decisions.

Period.

A-12-year-review-of-moral-damages-and-duty-of-care-at-ILOATDownload

We really care, but first… we will retraumatize you

Under Article 10(5)(b) of the UNDT Statute and Article 9 (1) (b) of the UNAT Statute, the Tribunals can order what we know in the common law system as compensation for “non-pecuniary loss” or what we recognize in the UN as compensation for “moral damages.” Moral damages are distinct from in-lieu compensation. 

Moral Damages compensate the Applicant for various causes such as mental and physical suffering, depression and anxiety, mental anguish, loss of reputation, humiliation…

In Judgment UNDT/2015/053, the Tribunal recognized that

“moral damages are not solely a question about money but a warning in the field of employment law to employers on how to treat people.”

Now, when the Tribunal establishes an unlawful decision and vindicates a staff member, one would think that the staff is automatically entitled to compensation for Moral Damages.

Think again.

Before 2014, staff members provided their testimonies directly to the Tribunal, describing at length their suffering. The Tribunal, satisfied with the individual testimonies, proceeded to award compensation for moral damages.

In 2014, the Secretary-General proposed to the GA, and the GA approved significant amendments to the UNDT and the UNAT statutes. The subtle but significant changes introduced the expression “supported by evidence” after “compensation for harm” in both Statutes.

But what does this mean for the mentally tortured staff, who not only found themselves without a job, perhaps also with a torn-apart family but also unable to regain their mental strength to secure financial independence again?

In short, since 2014, a staff member’s testimony alone is no longer considered sufficient evidence of harm, warranting compensation for moral damages. The staff members are now required to provide medical, psychological, and even psychiatric reports to establish the direct causal link between the harm, stress, or anxiety caused to them and the breach of their substantive or procedural rights.

There goes another layer of humiliation, invasion of privacy, traumatization, amplified anxiety…you name it. The reference to the staff member’s name and the various psychological problems they’re suffering from is also explicitly mentioned in the judgments, which are public documents. 

How can this scenario possibly contribute, in any way, to restoring the mental health of these staff and the damage already inflicted upon them?

To add insult to injury, the UNDT/UNAT compensation for moral damages are paltry sums compared to what the ILO Tribunal awards to staff falling under their jurisdiction.

If the Secretary-General is genuinely concerned with the mental health and well-being of the staff, perhaps he can start by making concrete proposals to amend the UNDT/UNAT statute and revert to the former policy, demonstrating a more compassionate and caring stance instead of the current one which only contributes to exacerbating the status of the staff members well-being and mental health issues.

Nadine Kaddoura

A 12 year Review of Duty of Care, Mental Health and Moral Damages in the United Nations Dispute and Appeals Tribunals

The UN doesn’t need another articulately well drafted strategy to tick the box and satisfy the requirements of member states and donors at large. We certainly do not need a strategy to tell us to take care of each other. What we desperately need is #accountability.

The #UnitedNations workplace mental health and well-being strategy launched in October 2018, was designed to optimize the psychological health of staff, improve organizational capacities to protect #mentalhealth and prevent mental health issues in the workplace.

The strategy followed the global 2015 United Nations staff well-being survey, according to which approximately 50 % of UN staff reported symptoms consistent with mental health conditions.

The strategy followed the global 2015 United Nations staff well-being survey, according to which approximately 50 % of UN staff reported symptoms consistent with mental health conditions.

50%. That is half of the workforce of the UN.

In reality, this number is much higher. According to the survey and the five year strategy, there were four main reasons for the poor mental health of staff: 

·      The number of years worked with the UN.
·      Exposure to traumatizing events in the previous 12 months.
·      Low job satisfaction, perceived incivility and conflict in the workplace
·      Low levels of help-seeking or receiving any mental health services.

Unsurprisingly, nowhere to be seen were the unlawful decisions taken by senior managers which were the root cause of most, if not all mental health issues or the fact that the concept of #accountability was persistently infringed upon in the Organization, which was the root cause of the stark increase of mental health findings in the survey.

The UNDT and UNAT judgments issued between 2009 and 2022 beg to differ. In the attached document, the list of all Judgments awarding moral damages due to moral harm inflicted upon the staff member’s emotional well-being paints a grim picture of the existing #toxicworkenvironment and the failure of the Organization to hold ANY senior manager accountable for their erroneous and harmful decisions. Decisions that impacted on every staff member’s “Quality of Life”.

At the end of the document is a compilation of the UNDT’s own bleak words referring to the various mental health issues inflicted upon these staff members. Words that were repeated in every judgment, session after session, year after year from 2009 to 2022. Read them slowly. Feel the pain, the sadness and the scariness of what these staff went through.

The UN doesn’t need another articulately well drafted strategy to tick the box and satisfy the requirements of member states and donors at large. We certainly do not need a strategy to tell us to take care of each other. What we desperately need is #accountability.

Start by holding these managers accountable. That’s the only element of deterrence that will drastically improve the work environment and the mental and physical well- being of the staff members. 

To conclude with an extract from a staff member’s testimony who was left with an “altered life drastically”. What the UN needs is drastic measures to uphold #accountability. Nothing less.

#UnitedNations#DutyofCare#MentalHealthMatters#Accountability

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On Duty of Care and Mental Health in the United Nations

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What do these words have in common?

Watch this space next for a post on #dutyofcare and #mentalhealth in the United Nations.

#unitednations #mentalhealth #accountability #dutyofcare