Interdisciplinary harassment investigations

I get asked from time to time about the process of managing and investigating harassment complaints. How should it be done? Who should do it? Who should be in charge?

That is not an easy question to answer, because it depends on the organization. For example, small organizations or even medium-sized ones, engaged in inherently low-risk work, may have only a Human Resources professional or a small Human Resources department, with no dedicated Health and Safety personnel. It is common for human resource professionals to manage Health and Safety aspects when organizations face a low Health and Safety risk.

That model does not always take into account the risk that is posed by workplace harassment. Studies and surveys consistently show that about twenty percent of employees surveyed feel they were harassed in the past 12 months, and seventy percent had witnessed harassment. That is the average. It is much higher in some industry sectors. The previous traditional methods of handling workplace harassment incidents or complaints are very different than what is required today. A risk management approach that results in a non-disclosure agreement and severance may not be the right, or legal, way to proceed. Companies that try to shortcut the process usually get themselves into some kind of legal trouble.

Human Resources has traditionally managed the policies and procedures that relate directly to employees. Legislation across Canada almost uniformly requires that companies have a harassment prevention policy or plan and clear procedures for investigation. These requirements invariably appear in Health and Safety legislation, not in the Employment Standards Code or similar legislation.

Psychological Health and Safety and harassment prevention really require an interdisciplinary approach. There doesn't seem to be any real consensus on who should be in charge of the process, or who should be responsible for the procedures, and who should be responsible for assessing the risk associated with harassment or workplace violence. It is also unclear who is responsible for fielding and implementing the harassment prevention plan.

What is clear is that there must be procedural fairness, meaning clear, transparent procedures for making a complaint and for determining whether an investigation is required. There must also be procedures for completing an investigation and informing the involved parties of its results.

Where an organization has both Human Resources and Health and Safety professionals, both disciplines should ideally be involved in managing, preventing, and investigating workplace harassment.

There are many who point to a serious optics problem around the process that many companies have. In these cases, Human Resources is responsible for the procedure and also the department that accepts complaints, evaluates complaints, conducts the investigation, and decides what discipline is required. That can certainly look like a conflict of interest. It could also violate professional ethics and give the employer only one viewpoint, as well as lead to a potentially flawed investigation. These days, investigations are being challenged in court and consistently found to be inadequate or to violate the rights of one or more parties.

A clear and transparent process

One place where things tend to go sideways in a hurry is at a very basic level. Procedures, especially good ones, are not easy to write. All procedures upon which the employer intends to rely and which employees abide by must be clear and clearly understood by all parties.

The acid test is that an employee should be able to read the harassment procedure and clearly understand what will happen from the moment they make a complaint. They should clearly understand how their complaint will be accepted and how their complaint may be facilitated by the person accepting the complaint. They should also know what kind of accommodation they can expect.

An employee should be able to understand how their complaint will be evaluated. There must be a clear structure and methodology that will be used in the investigation. They must also be able to clearly understand what they will receive once the investigation is complete.

That seems somehow simple. But many companies do not have clear and transparent procedures. They require employees to fill in a complaint form and submit it to someone, and simply wait. A more sophisticated approach is to have someone who is accepting the complaint speak with the employee to gauge the specifics of the complaint and try to get a more comprehensive idea of the situation. This allows the employer to respond quickly and take any immediate action that may be required. There must also be a process to allow the employer to initiate an investigation, without a complaint, where they have reasonable cause to believe there has been harassment or inappropriate conduct.

Parties involved in a complaint should receive the written findings of the investigation. Not a summary, and not necessarily the entire report with sections redacted. The people receiving the results of the report should clearly be able to understand what the allegations were and the rationale for the findings in regard to those allegations. Organizations often make the mistake of trying to shroud the report confidentiality or some other sort of protection. Some provide a summary that is vague. That really does not serve the process or any of the parties well.

Appointing an investigator

Appointing an investigator is one of the most contentious areas I see, where it should be fairly straightforward. If the employer wishes to appoint an investigator, they should reasonably consult the parties involved in the complaint. I say reasonably because sometimes there are concerns raised about the investigator that are not based on fact. Generally, the employer must ensure that the investigator is competent. Now, in Health and Safety legislation, that means someone who is adequately qualified, suitably trained and with sufficient experience. Most professional codes of ethics require that persons do not engage in work where their competency may be in question. That sort of narrows the pool. I would always advise that in complex cases, employers consider using an external investigator. By complex cases, I mean cases where the allegations are particularly salacious or a member of senior management is involved. These are also cases where someone could lose their job. These cases are usually life-changing events for those involved.

In cases where an internal investigator is to be used, there is an opportunity to engage in an interdisciplinary approach to maintain objectivity as best as can be done inside a company and also provide a different viewpoint.

Companies may have several choices when it comes to investigators for harassment cases. They may have Human Resources professionals with some training in these kinds of investigations. There are also Health and Safety professionals who receive training and conduct investigations as part of their competency standard. The problem is that training alone is not enough. Where a company is short on experience but does have training, it makes sense to have the Health and Safety professional conduct the investigation. At least it makes sense to offer to have a Health and Safety professional conduct the investigation. This gains several advantages for the process. First of all, even if the Health and Safety professional is in the Human Resources department, they are perceived as a separate discipline and therefore less biased than someone in the Human Resources department. The Health and Safety professional's focus would be through the lens of employee safety and causation regarding the incident. While harassment investigations have a different goal, many of the same skills are used in conducting them. This allows the Human Resources personnel to operate at arms length to the investigatory process.

An important consideration is ensuring that employers do not use the Health and Safety incident reporting and investigation process to receive and investigate harassment incidents. While some investigative skills and methods may be applicable, the standard Health and Safety incident investigation does not observe procedural fairness in a legal sense, as those investigations have a different focus and purpose. An investigation into an injury event would focus on the causes of the incident and identify corrective actions to address them. The investigation is focused on why the event occurred. In the case of harassment, the investigation focuses on establishing what happened and determining whether the events found to have occurred meet the definition of harassment. The procedural fairness required in harassment investigations involves ensuring that there are clear allegations and that each party is given the opportunity to respond to any information or evidence presented. This is true of all administrative investigations.

This would still provide oversight of the process when issues arise, such as additional complainants or respondents. Investigators would normally consult with the point person on the complaint to determine whether the investigation should be expanded if new evidence or information comes to light. The Human Resources department would be responsible for ensuring that the investigation process, as laid out in the procedure, was followed by the investigator and that parties were kept up to date on the progress of the investigation in cases where investigations take more than a few weeks.

Receiving the report

If the Human Resources department or Human Resources professionals receive the investigation report, it allows them to challenge the rationale for the findings laid out in the report to ensure they withstand outside scrutiny.

As with all reports, there are usually mitigating and aggravating factors identified as part of the report. There are recommendations, but those recommendations would not address any sort of disciplinary action or suggest any action be taken in regards findings or the parties involved. These recommendations typically focus on procedural matters and advise the company to review and revise its harassment procedures as required. There is usually an opportunity to ensure the report is fully accurate before it is accepted and its findings are shared with the parties involved.

Follow up

After any investigation, there is always a follow-up. Employers with a clear and transparent harassment process will have a risk or hazard assessment relating to harassment. This is once again an interdisciplinary process. Health and Safety professionals are highly experienced in conducting risk assessments and using various tools and controls to mitigate the risk posed by a specific hazard, such as harassment. The employer can learn from these investigations and update its processes to ensure it has appropriate risk mitigation measures in place to reduce the likelihood of any employee being harassed.

The interdisciplinary approach

The interdisciplinary approach is not something terribly new. By utilizing both Human Resources and Health and Safety professionals within the organization, the employer can pursue effective interventions and investigations without having Human Resources seem to be the judge, jury and executioner in these cases.

The appearance of a conflict of interest should concern employers, and it would certainly give any employee pause. Investigator competency is a tricky subject. The courts have seen instances where Human Resources and Health and Safety professionals have been found to have conducted heavily biased investigations. Even lawyers are not immune from this, and there have certainly been judgments that found that lawyers fail to observe procedural fairness and demonstrate bias.

There are no guarantees, even almost eight years after harassment was recognized as a workplace hazard. There have been many discussions on who should have ultimate responsibility for the harassment process. Should it be Human Resources? Health and safety? That really doesn't matter. What matters is that employees feel that they have been fairly treated and that their complaint, whether it was made by them or against them, has been competently investigated, observing the principles of procedural fairness.

Using an interdisciplinary approach allows the employer greater flexibility and provides the parties involved in an incident with more choices and a greater sense of control over the process. Parties are much more likely to accept the findings of an investigation if they believe the process was followed and they were treated fairly throughout. This is particularly true if they are asked to provide input into the selection of an investigator. It seems a bit counterintuitive to give up or share control over some important decisions. No one is suggesting that the employer give up all control. However, it is important to give a measure of control and input to the parties involved in the investigation. Employers are required to conduct an investigation and may sometimes have to move forward over the objections of one of the parties because those objections are not founded in fact or simply emotional protestations.

Conclusion

There will still be cases out there where a single person accepts the complaint and investigates the complaint. In small companies, that can be the reality. As I said earlier, in complex cases, an external investigator is usually a very good idea.

An interdisciplinary approach allows the Human Resources professionals to avoid being perceived as the judge, jury and executioner. Health and Safety professionals conduct investigations as part of their job, and they are never involved in the disciplinary process, or they never should be. While Health and Safety investigations and harassment investigations follow different paths, the investigator in either case would be stepping outside the process if they addressed any remedial action involving employee discipline. This is a well-established tenet of the Health and Safety investigator. Health and Safety professionals often conduct internal investigations and do so as an objective party.

An interdisciplinary approach allows the owners of the harassment process to oversee the process and ensure that the process is being followed while keeping the parties involved informed of the progress of the investigation, where investigations are lengthy. It also means that the investigator would have an arms-length relationship with those receiving the investigation report, and it is entirely up to those receiving the investigation report to clarify the findings of the report and consider what action should be taken in light of the findings.

Where an interdisciplinary approach is possible, it should be utilized to demonstrate the company's commitment to preventing harassment and to intervene in cases where there is harassment, or there has been a complaint of harassment in an informed and inclusive way. This will help employees and parties involved in such cases clearly understand the process and see that there is more than one department or discipline involved in the case, which will promote acceptance of the findings of the report once it is received.

It can be tempting for some to feel that they should investigate harassment when they only have some training or a little experience. We should all be mindful that doing tasks or conducting work that exceeds our competence is unethical and unprofessional. Those coming forward with complaints of harassment and those who have complaints made about them are entitled to a competent investigation that follows a transparent procedure and respects the legal principle of procedural fairness. These investigations can be complex and do require a certain skill set and experience. An interdisciplinary approach helps mitigate some of these factors. It also gives an organizational opportunity to critically review investigations and reports.