10 Sep #Metoo Has Come to my Workplace, Now What Do We Do?
Allegations of sexual harassment are serious and employers should investigate them promptly. Even when no specific complaint has been made, but there has been gossip or murmurings of inappropriate behaviour, employers should probe the issue and not wait for a formal complaint.
In workplaces where leadership ignores signs of problems, the problems are likely to be bigger and more complex when they eventually emerge with a formal complaint than they would have been if properly dealt with earlier.
Employers who fail to act when a complaint is received or when there is a reasonable suspicion of inappropriate conduct in the workplace, risk penalties and fines for non-compliance with applicable occupational health and safety legislation. They also risk civil claims for constructive dismissal among other things.
First Steps After Receiving a Complaint
When a complaint is received, employers first need to consider who should handle the complaint. Ideally, there will already be a policy in place that identifies the proper individual or department to receive complaints and supervise the investigation process.
The complaint should then be reviewed to assess the nature of the allegations and whether, if true, they would constitute a breach of company policy or legislation. If not, an investigation may not be necessary and the complaint may be addressed through other human resources processes.
Consideration should then be given to whether any changes are appropriate within the workplace pending completion of an investigation. As an example, in some circumstances, it might be appropriate to implement a change in reporting structure or place an employee on a temporary paid leave.
Who Should Conduct the Investigation?
If it is decided that a complaint merits investigation, one of the most important decisions employers will face is whether the investigation can be conducted internally or if it should be turned over to an external investigator. There are a number of considerations that go in to this decision including: the seriousness of the allegations; the skills, training and experience within the human resources department; the respective positions of the complainant and the respondent; the seniority of the potential investigator in comparison to the respondent; and whether the employer wants to be able to assert solicitor-client privilege over the contents of the investigation report.
Once an investigator is selected, employers need to outline the scope of the investigation and detail what they want the investigator to do – interview witnesses, write a report, find facts, draw conclusions, make recommendations, or all of the above.
What Do We Do After the Investigation is Complete?
It is important that the investigation be done as quickly and confidentially as possible in the circumstances. When the investigation is complete, the investigator’s report must be reviewed and considered by the appropriate individuals within the organization. In most circumstances (if the employer has not already involved legal counsel in the investigation process), it would be a good idea to get legal advice on how to proceed based on the conclusions of the investigation and recommendations.
After the company has decided on any actions arising from the results of the investigation, arrangements should be made to meet with the complainant and respondent and advise them of the outcome of the investigation, including any discipline that may be imposed – within the confines of privacy and confidentiality obligations to others involved in the process. These conversations can be uncomfortable for all involved and employers should ensure appropriate supports are in place depending on the nature of the information being conveyed.
If you do not already have a policy in place that expressly prohibits sexual and other forms of harassment and outlines the process for making and responding to complaints, we would be happy to work with you to draft one to ensure you are in compliance with all applicable legislation.
We also have a number of lawyers who can conduct external investigations, or work with your staff to oversee an internal investigation.