Last month, key elements of Bill 132, Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment), 2016 (“Bill 132”), came into force. Employers are now required to have comprehensive policies and programs in place to address workplace harassment, along with detailed investigative procedures to be followed in response to complaints or incidents of harassment.
The latter requirement has led many employers to ask whether investigating is enough or if the employer can still be liable if the investigator gets it wrong. The answer is two-fold. Employers need to follow a proper protocol for investigating to comply with Bill 132. However, employers also need to take appropriate corrective action where harassment is substantiated, otherwise they risk liability under human rights legislation or in civil cases. Reputational damage can also result if the case plays out in the media.
In other words, investigating isn’t just about following steps. The investigator must determine whether or not the harassment allegations are substantiated. A practiced investigator will bring his or her experience to bear in weighing and assessing what he or she learns throughout the investigation and in drawing conclusions. But, everyone needs to start somewhere. For those of you who are conducting your first (or near-first) investigation of a harassment complaint, we’ve set out some general advice and tips to assist you in this important exercise.
Top 10 Basics of Investigating
- Follow protocol. Make sure you follow the procedures for investigating set out in your company’s workplace harassment policy and program. Think carefully about who the investigator(s) should be. Consider using a third party if the circumstances make that the right choice.
- Set the table properly. The complainant, respondent and witnesses all need to be informed, up front, of the process and what is expected of them. Everyone needs to understand 1) that the complaint will be taken seriously; 2) that co-operation and discretion is expected; 3) that reprisals are prohibited; and 4) what the expected timeline is.
- Don’t delay. Always investigate in a timely manner for the simple reason that you will reach a conclusion, and take any corrective action, sooner. Also, the more quickly you get started, the less likely you’ll hear “I really don’t remember” when interviewing those involved.
- Don’t rush. While this seems contrary to the above, it’s only common sense. Witnesses might be on vacation, leave of absence, or even just really hard to reach. There will always be pressure to complete the investigation faster – don’t compromise the integrity of the investigation for the sake of a quick, but unreliable, answer.
- Be thorough. But keep in mind that not all allegations require the same degree of investigation. Bill 132 anticipates that not all complaints should be delved into equally. Rather, employers need to conduct investigations that are “appropriate in the circumstances” and the seriousness of the allegations will usually determine what’s appropriate.
- Mum’s the word. Maintain confidentiality to the greatest extent possible throughout the investigation by only disclosing information on a “need to know” basis. Follow requirements regarding the collection, use and disclosure of information in those jurisdictions covered by privacy legislation.
- Pair up. Two investigators are better than one at capturing information and will reduce the risk of personal bias being applied. Having two investigators may also lessen the likelihood that the complainant or respondent will dispute the conclusions drawn by the investigators.
- Understand facts vs. evidence. A fact is what actually happened. Evidence is what you will look at and weigh in order to conclude what is most likely to have happened. As an investigator, you should be looking for relevant and reliable evidence in order to make your conclusions about what is likely to have happened.
- Anticipate a judge will see everything you write down. Hopefully your investigation will not lead to legal action but you should always operate under the assumption that it will. Everything you write or otherwise record, might end up in front of a judge or in the hands of a lawyer who is looking to poke holes in it.
- Get help when you need it. Consider involving legal counsel if you need advice on any aspect of the investigation, especially for more complicated complaints. Legal counsel does not necessarily have to conduct the investigation, but they can help to ensure it is conducted properly.
Make sure you consider how to ensure that adverse parties are separated during the investigation. Is an administrative leave without pay necessary to separate the respondent and the complainant or is it sufficient to amend reporting lines temporarily?
What to Ask
The specific questions you will want to ask in the interviews will vary depending on the particulars of the complaint. Plan your questions out carefully and always listen to ensure that you are getting a response to the question that you actually asked. You should typically ask questions in the following areas in order to obtain as much information as possible.
The complainant. Cover the “who, what, when ,where, why and how.” You should also ask about witnesses and any other relevant information, such as whether any documentation or physical evidence exists to support the complainant’s allegations.
The respondent. Inform the respondent of the complainant’s allegations and ask for his or her response. As with the complainant, you should also ask about witnesses and any other relevant information the respondent may have.
Witnesses/other parties. Ask what this person knows about the alleged harassment or behaviour and what his or her relationship is with both the complainant and the respondent.
Other Useful Information
In addition to the complaint, be sure to review available background information pertaining to the complainant and the respondent, such as personnel files, performance reviews, peer reviews, information about previous complaints involving either party and so forth.
Evaluate all of the information gathered during the investigation. Take into consideration the credibility of those interviewed and any inconsistencies in their statements. In almost every case, you will be unable to determine exactly what happened. You may, however, be able to draw a conclusion where on the balance of all of the evidence something is more likely to have happened one way rather than another. At the same time, be careful not to draw a conclusion unless it is supported by the information gathered in interviews or other relevant information.
Take detailed notes of each interview. Prepare a report summarizing the details of the investigation, any conclusions you were able to reach, and how you arrived at any conclusions drawn. You should also state any recommendations for corrective action, including disciplinary measures, as well as any potential changes needed to workplace or company policies.
If it is your responsibility to inform the complainant and the respondent of your conclusions and any corrective action, be sure to do so individually.
Employers are expected to take active steps to prevent harassment in the workplace and to address any complaints made by employees. It is essential to respond quickly and effectively to a complaint by conducting an appropriate investigation. Your goal as an investigator is to determine whether or not the complainant’s allegations are substantiated. You should only draw conclusions that are supported by the weight of the evidence. By following the guidance set out above, you will have the right tools to conduct a thorough and well-considered investigation.