If done badly, you could lose the confidence of the entire workplace, warns employment lawyer
When your top employee is suddenly accused of misbehaving, how should you proceed?
The issue recently reared its head in the UK, when morning TV host Philip Schofield was accused of having a secret relationship with a "much younger man" – stepping down from GMTV and other subsequent public appearances.
ITV, the broadcaster, then issued a statement claiming it had launched an investigation into the alleged affair, however it found no "evidence of a relationship beyond hearsay or rumour". After this, other members of the show came forward alleging a “toxic culture” existed on set – with yet more rumours and allegations mounting against the show and Schofield himself.
Now, an external investigation is taking place – one which will look into both the nature of the alleged affair and the broadcaster’s internal investigation. It begs the question – when should an employer step in and investigate allegations? And, should this investigation be any different if it concerns a high-performing employee?
“No, it shouldn’t,” says Mike MacLellan, partner at CCPartners. “In any case, there's going to be certain sensitivities. As an employer, you have to make sure that you're aware of the circumstances of every particular investigation - but you don't get to not investigate a complaint just because the potential respondents is a superstar employee, or have some kind of position of importance or authority.”
From a both legal and human resources standpoint, employers cannot deign to ignore allegations of misconduct - regardless of the worker in question. And, if the employer is not investigating everybody with the same degree of fairness and diligence, they’re set to lose all credibility.
“Investigations will lack credibility and reliability,” says MacLellan. “And you’re going to lose the confidence of the entire workplace.”
The first step to any investigation is listening to the complaint itself. And while that might sound simple, it’s often a stumbling block for HR practitioners.
“Ensure you understand the nature of the complaint,” says MacLellan. “What exactly is being complained about? What is being alleged? Does this require further action? HR practitioners need to gather all that information first. From there, you have to determine whether an investigation is warranted.
“If it’s an issue that’s ‘run of the mill’, something that’s relatively minor, a full investigation may not be necessary. Instead, try to meet with the people involved, hash it out, and get back on track.”
However, if it looks serious – and there may be a possibility of controversy or conflict of interest with the people involved – employers need to then consider who is in charge of the investigation.
“If the employer decides to conduct the investigation, you really need to consider if there’s an external individual who might be more suited – especially where conflict of interest is a concern. There’s plenty of independent and impartial investigators who can help here.”
From here, employers need to ensure the investigator has access to all the key information and the key people involved. This includes all workplace documents, policies, emails, correspondence and media – any documents that could shed light on what occurred.
After receiving the final report, the last thing an employer has to do is solicit legal advice on the findings and the next steps. For example, if the investigator found evidence of sexual harassment, the employer has to determine the current next steps to both address the issue and potentially discipline the employee.
“Next steps also include looking at how to restore the working environment,” says MacLellan. “Looking at restoring balance and a safe workplace.”
Investigations can be a minefield for HR. From balancing conflict of interest concerns to mitigating any bad press to getting to the root cause of the issue and avoiding any legal repercussions – it’s a lot. And because the process can be so intense, mistakes are often made.
Thie biggest mistake? Not taking the time to understand your responsibilities in respect to the investigation itself.
“Employers can assume that they’ve ‘heard the story before’, they’ve ‘heard that complaint’, they’ve ‘heard the manager’s response’ – and that they’re satisfied nothing occurred,” says MacLellan. “That’s not necessarily good enough – particularly if the allegations are serious or difficult to determine.”
The requirement for the employer, across Canada and in all jurisdictions, is to have a workplace investigation conducted that’s appropriate in the circumstances. What’s appropriate in the circumstances is going to depend on a case by case basis - it will change from person to person and complaint to complaint.
“The second most seen mistake is making assumptions,” says MacLellan. “Don’t go on issue from the past, the investigation should only be about the facts and merits of the individual case. HR practitioners should only be making inferences with extraneous information in really exceptional circumstances.”
Mishandling workplace complaints and bungling investigations can lead to more than bad press – it could spell hefty legal fees. As for legal ramifications, they’re a-plenty.
“The first and most obvious one, pursuant to the employment and labour standards legislation in the Canadian jurisdictions, is the responsibility that when there’s a workplace complaint brought forward, an investigation be conducted that's appropriate in the circumstances,” says MacLellan.
“This means there could then be complaints made to the appropriate ministry that the legislation has been breached. An employee could claim they've been wrongfully dismissed, or constructively dismissed, and point to a negligent or tainted investigation.”
This in itself could lead to civil damages for wrongful dismissal or infliction of mental distress – so, it’s essential an employer shows due diligence in the process of addressing any complaints.
“And that due diligence is wholly regardless of the respondents of the complaint – no matter who they are.”
