What should you do? What should you say? How do you not make matters worse?
A practical and informative guide that you hope to never have to use
Employers are required by law to investigate complaints of workplace harassment. Regardless of whether the complaint has merit or not, knowing how these things usually work allows you to have an informed response. Here’s what to expect and how to respond if you’re accused of improper behaviour.
If the accusations are serious, or if you hold a high position in an organization, there is likely to be a formal investigation. This might be conducted by in-house legal counsel or by the Human Resources Department. In some cases, the employer decides to retain an external investigator.
While the investigation is in progress, you might be suspended from work or transferred to a different location in order to minimize your contact with the complainant. You may be told not to contact the complainant, or to communicate only as necessary for work. It is important to respect this request.
The usual procedure in an investigation of workplace harassment is to interview the complainant (the person who made the accusation), interview the respondent (the person accused of improper behaviour) and interview any witnesses. The investigator might also follow up later with additional questions, depending on the information revealed in the interviews. Depending on the nature of the accusations, the investigator might review documentation such as email or text messages.
You should receive a written copy of the complaint or a “Statement of Allegations” before the interview with the investigator, and you should be given at least a few days to review it. Come to the interview prepared to speak to the events described in the complaint or the Statement. The investigator will likely ask you to provide a list of witnesses, or of others who can speak to the allegations. Have the names ready, but do not contact these people yourself.
If you are a unionized employee, ask for your union representative to be present at any interview or meeting.
If you do not belong to a union, there is no automatic right to have a lawyer, representative, or support person present at the interview. Review your employer’s policies to see what is allowed. (Don’t be surprised if your employer refuses to allow third parties to be present during interviews.)
At this point you might be thinking, “Wait – do I need a lawyer?” I put this question to employment lawyer Peter Straszynski of Torkin Manes LLP. He said that if you’re concerned that your job or reputation might be at risk, consult a lawyer, and do so as early as possible in the process and before you make any responses or decisions. Peter told me that, “Waiting to get independent advice until after an investigation of workplace harassment is over and a decision has already been made affecting your livelihood may be too late.”
(If you do decide to get legal help, reach out to a lawyer who specializes in employment law.)
Cooperate with the investigation and answer questions to the best of your ability. It is within the investigator’s role to assess the credibility of the evidence that is provided. If you refuse to answer questions, or answer vaguely, the investigator might find your evidence to be not credible. For example, if you say that you “don’t remember” whether or not you attended a meeting, and there are six witnesses who say they saw you there, you could come over as evasive or untruthful.
I have spoken to some people who believe that the complaint against them will be dismissed because “it is her/his word against mine.” What they don’t always realize is that the standard of proof in workplace investigations is “balance of probabilities.” (We’re used to hearing the standard used in criminal matters, which is “beyond a reasonable doubt.” This high bar is not used in workplace harassment investigations.) The investigator has to decide whether or not it is more than 50% likely that the events described in the complaint occurred. What this means is that faced with two different accounts, the investigator will decide which of the two parties has provided the more credible evidence.
Workplace investigations are supposed to be confidential, for everyone’s protection and benefit. Don’t discuss the investigation with anyone at your workplace (except your union representative, if you have one.) Instead, talk to family or friends outside the workplace. If you’re not comfortable discussing this with friends, get some support elsewhere. If your employer has an Employee Assistance Program, this is a good time to take advantage.
Finally, if you’re asked to change your behaviour as a result of the investigation, take it seriously and get the support you need to make positive changes. Times have definitely changed, and some behaviour that used to be ignored or even condoned is no longer seen as acceptable. In the end, workplaces without harassment are in everyone’s best interest.
About the image: A sleeping Raccoon at the Point Pelee National Park, Leamington, ON. Photo by Deena Errampalli via Wikimedia Commons.