Employers are required by law to protect workers from the hazard of workplace harassment, including sexual harassment. In most jurisdictions, including Ontario, part of the required protection is an anti-harassment policy and program that includes a process to investigate complaints.
Running a business while conducting a workplace harassment investigation is challenging. Worker morale and productivity can be affected. The following tips for managing the workplace during an investigation are based on HR Proactive Inc.’s twenty-five years of investigation experience, relevant legislation and case law.
Why? First of all, it is a requirement of the Occupational Health and Safety Act to ensure confidentiality and the protection of personal information. Privacy, primarily meaning not identifying parties (Complainant, Respondent and Witnesses), should be maintained. Of course, some identifying information must be shared for the purposes of the investigation, but the parties and witnesses should be advised that otherwise discussing the complaint or identifying individuals could be subject to discipline. Not only can gossiping be damaging to the parties and to worker interactions in general, it can affect the integrity of the investigation. Note too, that reprisal action against the Complainant and Witnesses for participation in the investigation process is contrary to law.
This is a fundamental requirement in Occupational Health and Safety law. Harassment is a workplace hazard. Careful consideration must be given to the seriousness of the allegations. Are the Complainant and/or other workers vulnerable to further harassment? In most cases, it is wise to separate the Complainant and Respondent in the workplace. Care must be taken not to punish the alleged victim by unnecessarily removing them from their usual assignment or by assigning them to lesser work. Where there is significant risk, the Respondent should be removed from the workplace. Because the allegations are not proven at this point, paid leave is appropriate.
Delays in an investigation affect the performance of the workplace and cause costs to rise, often including the expense of placing the Respondent off work on paid leave.
Both parties should be informed regarding the process. The Respondent should be provided with an opportunity to:
The outcome of the harassment investigation should be shared with both parties and time allowed for comment before a decision is made on any final action (e.g. discipline). Again, care must be taken to maintain confidentiality (Witnesses should not be identified). HR Proactive Inc. considers it a best practice to provide the parties with a copy of the investigation report on a review-only basis without allowing the report to be copied or to leave the workplace.
The sooner the investigation process comes to a conclusion, the sooner the parties and therefore the workplace can get back to normal operations.
Does your workplace have an Employee Assistance Program? Any Party or Witness expressing stress or experiencing health issues related to the investigation should be advised of the availability of assistance. Parties and Witnesses should be allowed to have representation (e.g. for union members) or a support person during any stage of the investigation process. Having a clear policy and process related to investigating harassment as well as following and explaining it to the participants as required at every stage will help to ease the tension for all.