Often, employers who receive a complaint about a workplace incident, such as violence or harassment, are caught off-guard. Whether the employer conducts an informal or formal investigation, workplace investigations are crucial in implementing corrective measures and protecting the company from liability.
Investigations can help ensure a workplace remains free from discrimination, harassment, and violence. Workplace investigations also allow employers to bring important issues to light, such as necessary training or discipline, so that such issues may be addressed to prevent further incidents. Businesses and organizations may also use investigations to uncover evidence to defend against anticipated legal matters.
Effective investigations enable employers to draw reliable conclusions as to what took place and what led to incidents involving misconduct. While investigations are a useful tool for both employers and employees to address workplace concerns to parse out details as to what took place, oftentimes, both parties are unsure of what to expect and what purpose the investigation will serve.
Depending on the nature of the allegations, the employer may need to suspend the respondent employee while the investigation is ongoing. However, an employer must take care to take proper steps to ensure such a suspension does not amount to a constructive dismissal, and should consult a lawyer prior to removing any employee from the workplace.
Courts do not require rigorous processes in the investigation, but any step taken must be objectively fair, reasonable, and competent. Prior to the investigation, employers should select an investigator who is neutral, trained, and unbiased. Individuals who are personally involved with anyone in the investigation incident will likely appear to be biased or having a conflict of interest, and should not be selected as an investigator.
The investigation should outline a proper scope, identify sources of evidence, and promptly gather information through interviews and documentation. Interviews should include any complainants, responding employees, and associated witnesses, and the investigator should consider the logical order of witness interviews based on the allegations. Location and scheduling will also be important considerations.
Should any witness require a support person, the support person must agree to maintain confidentiality and must not respond on behalf of the witness. Any support person must be cleared from any conflict of interest, which include the support person acting as a potential witness to the same investigation.
In the interest of fairness, any responding employees should be advised of the essential elements of the allegations against them and should be given an opportunity to respond to those allegations before any discipline is implemented. This will mitigate the risks of litigation from both a complainant and a respondent, as well as preserve the goodwill amongst other employees.
Some employees may refuse to participate in any fact-finding interviews or the investigation itself. Such employees may be subjected to discipline for insubordination up to and including termination, but the extent of such measures will depend on the individual circumstances of the employee’s case.
Any investigation should document its investigative steps as well as conclusions drawn from a review of the evidence. Once the investigation is complete, any necessary corrective action should be implemented promptly and fairly.
Where an employer has attempted an informal investigation—based on the nature of the complaint, the identities of the complainant and the respondent, and the employer’s own workplace policies—but the issue remains unresolved, the employer may need to commence a formal investigation.
Confidentiality and Privilege
Employers may wish to keep the results of a workplace investigation confidential to avoid disclosure of any evidence that could be used against them. Not all investigations are created equal, and employers should ensure that the findings of a workplace investigation are privileged. Most investigations rely on solicitor-client privilege or litigation privilege. Both will require the retainer of competent legal counsel to navigate the complexities of the investigation process.
Solicitor-client privileged investigations are created for the purpose of seeking legal advice. It covers all communications between lawyers and their clients for the purpose of obtaining that advice and is intended to be confidential.
Litigation-privileged investigations take place where an employer is anticipating a dispute to result in litigation and reviews the facts of what happened in preparation of its defence. Such privilege should be referred to in the retainer, as courts will examine these agreements to determine the merits of any challenge to privilege.
If you are an employer or an employee with questions about workplace investigations, or are seeking to clarify your legal obligations and rights, our team of experienced employment and human rights lawyers can help. Contact us at 1 (800) 771-7882, or email email@example.com and we would be happy to assist.
If you are a small or medium-sized company looking for full-service support, visit our CLO program page for our strategic solutions.
Disclaimer: This blog is not intended to serve as, or should be construed as legal advice, and is only to provide general information. It is in no way particular to your case and should not be relied on in any way. No portion or use of this blog will establish a lawyer-client relationship with the author or any related party. Should you require legal advice for your particular situation, fill out the contact form, call 1-(800)771-7882, or email firstname.lastname@example.org.
BOOK A CONSULTATION TODAY