By Gillian Shearer, LL.B.
In light of the many recent high profile cases of alleged sexual harassment in the workplace, the impact of such allegations to a company’s reputation has never been clearer. Employers who fail to respond to such complaints, or who fail to respond in a timely and adequate manner may find themselves poorly equipped to respond to widespread and negative media coverage.
Upon receipt a of serious, possibly criminal allegation of workplace sexual harassment (or other serious allegations), employers may mistakenly believe they are unable to effectively investigate the complaint due to the contentious nature and possible criminal implications of the alleged conduct. Further, they may also believe that where there is no corroborative evidence, the issue is an unresolvable “s/he said, s/he said” situation. Accordingly, many employers may prefer to leave the investigation of the incident to the police hoping or believing, they don’t have to deal with it internally.
However, recent events demonstrate some problems with this approach. Here are some practical tips to consider when faced with serious complaints by employees.:
1. STATUTORY OBLIGATIONS. Remember that you have a statutory obligation to conduct a reasonable investigation into harassment complaints, and to provide a harassment free workplace. As such, you must act on all such complaints from employees.
2. PREPARE FOR THE WORST. Where the complaint involves serious allegations, consider whether the allegations, if presented in the media, could damage your corporate reputation. Then, consider whether to engage your media relations’ team, or an external strategist, skilled in assisting organizations in such situations. Being proactive here can save you a lot of stress.
3. INTERIM MEASURES. Consider what steps need to or should be taken immediately following receipt of the complaint. In some cases, it may be necessary, given the seriousness of the allegations to make arrangements to ensure that the Complainant and Respondent are not working with one another. After gathering some additional details pertaining to the complaint, you may opt to place the Respondent and/or the Complainant on a paid leave pending the outcome of your investigation.
4. CONTACT LEGAL COUNSEL. It is strongly recommended that you contact legal counsel where the allegations are potentially criminal in nature. It would also be wise to get legal advice prior to placing any employee on a leave. Counsel can guide you through some of the recent changes in law regarding the employer’s right, in certain cases, to place employees on short term paid suspensions.
5. GET THE FACTS WHILE YOU CAN. Remember that knowledge is power. If you opt to wait until the police become involved you may have a very difficult time gathering information from the involved parties thereafter. The Respondent may assert a right to remain silent. Witnesses are likely to be very reluctant to get involved in a criminal matter. The Complainant may also withdraw her workplace complaint, which could have merit, prior to investigation. Parties will likely become even more reluctant to provide information if the matter becomes a public one, played out in the Globe and Mail. By conducting your investigation as soon as practicable, you will be better positioned to gather the facts and understand the situation at hand. This will allow you to more effectively respond to potentially damaging media coverage, to mount a proper legal defence, and determine how best to handle employment issues.
6. PRIVILEGE. Consider whether or not the investigation should be protected by legal privilege. If you are concerned that there may be risk of liability to your organization, or if litigation seems very likely, it may be wise to have legal counsel retain an investigator to gather the facts so that legal counsel may provide the organization with appropriate legal advice. In this regard, you should speak with counsel to determine how best to proceed with your investigation to ensure that the fruits of your investigation are protected by solicitor-client or litigation privilege.
7. STANDARD TO BE APPLIED. Remember the standard you are expected to apply when conducting a workplace investigation. You are not expected to arrive at a conclusion beyond a reasonable doubt. Rather, in the context of a workplace investigation, you will make your findings by applying a balance of probabilities standard. However, keep in mind that when you are dealing with serious and possibly criminal conduct, you need clear and cogent evidence to support a finding against the Respondent as findings of serious workplace misconduct could have weighty implications for the Respondent.
8. CREDIBILTY IS EVERTHING. In many cases of sexual harassment, or other similar workplace misconduct, there is no “smoking gun” to support your findings. In these cases, where credibility is a major consideration, it is important to ensure that the individual tasked with conducting your workplace investigation is capable of assessing credibility. This is no easy task. Drafting a report which you can rely upon that effectively outlines how the investigator arrived at his or her conclusions is crucial. This is particularly important as there are often considerable time lapses between the completion of an investigation and the resurrection of the issues before the media, a judge, or other adjudicator. At such later date, you want to be armed with a solid report, which will allow you to effectively justify any action or inaction on the part of your organization.
9. CONSIDER AN EXTERNAL NEUTRAL WORKPLACE INVESTIGATOR. Self-serving as this tip may appear, seriously consider utilizing an external neutral investigator. Where there is the potential that the matter may find itself in the media, or before a judge or other adjudicator, it will be important to ensure that the investigation, and any findings not only were made on the basis of a neutral and objective assessment of the evidence, but also that they appear to have been arrived at on the basis of a fair and independent investigation. You will also want to engage an investigator who can stand up to the stress of a high profile investigation and is capable of conducting themselves throughout in a professional manner that will ultimately lead you to the truth of the matter.
In reality, most of the organizations we deal with do not have a culture where serious misconduct, like sexual harassment, is acceptable. However, by failing to promptly or thoroughly investigate such complaints, they are not able to effectively address possible employee misconduct (or to take interim measures to limit the impact of employee misconduct), to properly defend themselves against legal claims, or to effectually respond to unflattering media coverage. Following some of these tips, may help better prepare you for these difficult situations.
Gillian Shearer, LL.B.
