As much as we strive to create a safe work environment, violence and harassment can happen in any workplace. If an employee comes to you with a complaint, allegations need to be taken seriously and followed by swift action.
Most jurisdictions require employers to have a written policy against workplace violence and harassment. This policy should specify the procedure to make a complaint and the steps the employer will take to investigate. Investigations help establish the facts. The investigation should be methodical and comply with your company’s policy, with each step clearly documented.
Step 1: Assess the Complaint
When an employee makes an allegation, consult your workplace violence and harassment policy. If the complaint meets the official definition of workplace violence and harassment, you must investigate.
Listen to the employee and ensure they provide a full account of the incident, including specific dates, times, locations, and witnesses. Obtain a written, signed, and dated statement from the employee.
Always treat the matter seriously and professionally, and do not discount the difficulties of coming forward. If an investigation will take place, ensure the employee feels safe in the workplace throughout the process.
Our Advice: If the complainant refuses to be named
Most jurisdictions bind employers to investigate once notified of a complaint. This is true even of anonymous complaints.
Often, an employee will fear retaliation if you investigate. Reassure the employee that all parties involved in the investigation will be made aware of the importance of confidentiality and the zero-tolerance approach to any retaliation.
Step 2: Determine Who Will Investigate
Start the investigation immediately after learning of the complaint. The investigator should not be involved in the incident and should not directly report to the complainant (the employee filing the complaint) or the respondent (the employee accused of harassment).
For internal investigations, the investigator must be neutral and unbiased. If the complainant or respondent feels that the investigation was partial, they may challenge the results. In certain circumstances, it may be necessary for an external party to conduct the investigation to avoid the perception of bias, particularly if the respondent is a senior executive.
Our Advice: Selecting an investigator
An investigator who can create an environment of trust and confidence is crucial for a fair, prompt, and impartial investigation. The investigator must be capable of investigating independently, thoroughly, impartially, discreetly, sensitively, and in a timely and unbiased manner.
It’s best practice to use two investigators, such as human resources staff, a health and safety representative, or an uninvolved manager or supervisor.
Step 3: Prepare for the Investigation
Advise the complainant and the respondent of the investigation process, including procedures, timelines, and confidentiality requirements. Consider whether to apply any interim measures during the investigation, like paid administrative leave.
Our Advice: Using administrative leaves with pay
Removing an employee from the workplace for a reasonable and temporary period to thoroughly investigate an incident may be acceptable under certain circumstances. For example, it may be appropriate if a complainant has raised a sexual harassment complaint against their immediate supervisor.
Keep in mind the following precautions surrounding the use of an administrative suspension:
- Must be necessary to protect legitimate business interests;
- Requires the employer to act in good faith;
- Must last as briefly as possible, with a fixed end; and
- Must be paid except in truly extraordinary circumstances.
Step 4: Hold Interviews
The purpose of interviews is to collect and assess evidence neutrally and objectively. Avoid agreeing with or influencing any of the interviewees during the investigative process. Focus solely on collecting the details from each interviewee’s perspective. Interview the complainant, respondent, and any witnesses individually and privately. Reiterate to all interviewees that they will not face retaliation for providing information in the investigation.
- For complainants: Collect the full details of each allegation.
- For respondents: Make them aware of all allegations against them and give them a full opportunity to respond to those allegations.
- For witnesses: Provide only the details of the allegations they witnessed.
In addition to preparing questions for each interview, there may be additional questions that come to mind based on your conversations. It may be appropriate to have follow-up meetings after the initial interviews to clarify information or ask additional questions.
Interview and Documentation Protocol
The investigator must document the full account of the details provided. Following each interview, the interviewee should be provided with and advised of:
- A summary of facts for review and signature;
- An investigation code of conduct for review and signature;
- The fact that confidentiality is integral to the investigation process; the investigation is not to be discussed with anyone in the workplace;
- The fact that direct or indirect retaliation by anyone involved in the investigation will not be tolerated;
- The possibility of a follow-up meeting during the investigation where additional questions or areas of clarification arise; and
- What to expect as a next step.
Step 5: Analysis and Conclusion
After the interviews, the investigator should analyse the information to:
- Determine and identify the substance of each allegation;
- Determine whether, according to the balance of probabilities (more likely than not), the behaviour occurred and if so, whether the behaviour meets the definition of harassment set out in the policy;
- Determine whether the allegations were made vexatiously or in bad faith if the allegations are unfounded; and
- Comment on any underlying factors encountered during the investigation that may have contributed to the situation or may have had a negative effect on the work environment.
Prepare the final report or conclusion, relying on the information from the summary of facts. This report should contain:
- A description of the complaint;
- A description of the investigation;
- A description of the evidence that supports or refutes the complaint;
- An analysis of that evidence; and
- A statement of whether the behaviour described in the complaint breaches the policy.
Disciplinary Action
If disciplinary action is required, determine the level of discipline based on the severity of the incident, previous action taken in similar circumstances, and the employee’s history. Depending on the facts of the case, disciplinary options can vary from verbal warnings to termination of employment.
As part of any corrective action, it may be appropriate to add an education component. For example, a respondent may be required to complete a workplace violence and harassment policy review and training course.
Step 6: Follow Up and Close Out Meetings
Prepare outcome letters for both the complainant and the respondent and meet with each separately to provide the results of the investigation.
In each meeting, you should:
- Review the original complaint and advise whether the complaint was substantiated or unsubstantiated:
- If the complaint was substantiated: Advise whether you are taking corrective action to ensure the behaviour does not reoccur. Only the respondent should receive details of their disciplinary consequences.
- If the complaint was unsubstantiated: Explain why the evidence you collected did not substantiate the complaint.
- Provide the party with a formal investigation close-out letter that summarizes the results.
Remind all involved parties:
- Confidentiality is integral. The parties are not to discuss any aspect of the investigation with anyone in the workplace. The investigation is considered formally closed.
- Any retaliation, whether direct or indirect, by anyone involved in the investigation will not be tolerated.
Get Personalized Advice from an HR Expert
It’s important to be proactive about preventing workplace violence and harassment, but if an incident does occur, it needs to be properly investigated. If you have a specific question about workplace violence and harassment or conducting an investigation, our advisory team can help.
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