How to... Investigate Workplace Bullying and Harassment ComplaintsPosted in : How To... with Dr. Gerry McMahon on 11 November 2019
Earlier this year the Central Statistics Office revealed that almost 1 in 3 members of the national workforce claim to have experienced bullying or harassment at work.
The failure to properly investigate such claims – regardless of their merit and the different tests applied thereto – frequently contributes to allegations being upheld. Indeed, the Labour Court doesn’t always give an investigation a ‘clean bill of health’, as it did in the recent Stryker Orthopaedic case. In this instance, SIPTU argued that the bullying and harassment investigation was ‘fundamentally flawed and that the findings cannot be relied on’. However, the Court concluded that all procedures were fully followed by the employer, via an independent external party who conducted the investigation (LCR 21993). Hence, this article offers some practical tips for consideration in the conduct of an investigation.
Follow Your Procedure
Tempting though it is – and occasionally for honourable reasons – instances of investigators or members of the employer’s management team doing a ‘solo run’ have been fatal to the employer’s defence against claims of bullying/harassment. Notably, in the aforementioned Stryker case, the Workplace Relations Commission’s (WRC) Adjudication Officer held that the employer’s procedures had been followed.
At the appeal hearing it was argued that all procedures were fully followed, leading to the Court’s conclusion that the claimant failed to identify any failure on the part of the employer to follow their own ‘Dignity at Work’ policy. So, the message is clear from case precedent: have an up-to-date and available policy/procedure and (when activated) stick to it.
This also means that (in the case of a formal complaint) the investigator should proceed with integrity, fairness, impartiality and respect, before submitting their findings to the organisation in line with policy, procedure and the agreed terms of reference.
Take It Seriously
However far-fetched or trivial the complaint may appear; it is important that it be taken seriously. Regardless of the context or circumstance, a failure to address an allegation promptly, in line with the organisation’s policy, may prove fatal.
On the matter of dealing with the complaint formally or informally, the Labour Court’s direction (to An Post in 2004) was that: ‘taking too formal an approach to these matters can often inhibit people coming forward’. That is, should the complainant prefer, there is a good case for tactful intervention, via an informal procedure, as one proceeds in a ‘confidential, non-confrontational, low-key manner, whilst remaining impartial’.
To the benefit of all parties, such delicate and diplomatic interventions have prevented many such scenarios from turning toxic. Indeed, this task is frequently assigned to what are described in organisational policies as (trained) ‘designated persons’. In the case of a formal complaint, the investigator must be impartial throughout the process and ensure that all relevant parties have their say.
The reason(s) for any exceptions to this should be explained by the investigator. An investigation is a very formal, legalistic, time consuming and expensive process and should normally only be instigated after other avenues have been explored, where the matter or alleged behaviour is so serious as to warrant an investigation (e.g. criminal offence) or at the complainant’s insistence.
Have Terms of Reference
Investigations of formal complaints should be conducted in accord with the relevant policy and governed by appropriate (and preferably agreed) terms of reference. These reference terms should specify the issues, objectives and scope of the investigation, the investigator’s role and responsibilities, the procedure to be followed and the time frame.
Should the complaint warrant a formal investigation, it must be in writing, signed and dated by the employee making the complaint. He/she should provide details of specific instances or incidents, dates, times, details of what happened, who was present etc.
Notably, if another issue or incident emerges as a complaint later on in the investigation, it may be deemed outside the scope of the ongoing investigation, as it wasn’t raised as part of the original complaint. Alternately, the relevant terms will warrant amendment(s).
Clarify Fact-Gathering or Finding
To ensure adherence to fair procedure and natural justice (incl. rights to representation and cross-examination), it should be clear whether the process is ‘fact-gathering’ or ‘fact-finding’. That is, under ‘fact-gathering’ the investigator determines whether there’s a ‘case to answer’. Hence, he/she is not empowered to make findings or impose sanctions but determines whether there is a case to answer under the disciplinary procedure.
However, in a ‘fact-finding’ investigation, the investigator is empowered under the terms of reference to make findings which cannot be re-opened for further investigation at a subsequent disciplinary hearing. Hence, the full suite of natural justice principles and procedures may well apply.
Allow Representation and Cross-Examination
Further to recent court decisions and pending appeals, the matter of legal representation in ‘fact-finding’ investigative scenarios remains a moot point. However, all are agreed that parties required to attend investigation meetings must be offered the right to be accompanied by a representative.
Whilst the right to legal representation appeared to be approved in the Lyons v Longford Westmeath ETB High Court (bullying) case, further to the subsequent Irish Rail v McKelvey Court of Appeal case, the weight of opinion (and practice) has been to resist this development, save where the case’s (legal) complexity and the gravity of the alleged conduct may give rise to a dismissal.
This tallies with the landmark Supreme Court decision (in Burns v Governor of Castlerea Prison) that listed six factors for consideration when deciding whether a fair hearing meets the ‘exceptional circumstances’ warranting legal representation:
- The seriousness of the charge and the potential penalty.
- Whether any points of law are likely to arise.
- The capacity of the employee to present her/his own case.
- Procedural difficulties.
- The need for reasonable speed in making the adjudication.
- The need for fairness between the parties.
There is also agreement on the point that one is entitled to know what one is accused of and to nominate – whatever about cross-examining - parties to the process (e.g. witnesses). However, based upon case precedent, it appears appropriate – where binding findings are to be reached in the investigation – to activate this right to cross examination.
Attempts to restrict this right (and legal representation) include limiting the scope of potential sanctions in advance of the investigative process (i.e. if the allegation is upheld, it is not so serious as to warrant dismissal). Yet Geraldine Carr (at Matheson’s Solicitors) has summarised her research in this area by pointing out that ‘case law to date does seem to favour a general right to cross examination at the final decision-making stage’.
Notably, many experienced investigators opt instead to examine witnesses via what the nominated party proposes, together with their own supplementary questions. For protective purposes, this process is often specified in the investigation’s terms of reference. Of course, ‘if push comes to shove’, via an appeal before an external third party, the right to legal representation and to cross-examine is standard fare. Indeed, the granting of such rights in an investigation may well be the most effective way of ensuring that the investigative process does not become the subject of a successful court appeal.
Sequence of Interviews
The organisation’s ‘Dignity at Work’ policy may specify the sequencing of interviews and should be adhered to. If it doesn’t, the norm in such scenarios is to meet the complainant first, then the alleged perpetrator, followed by the nominated witnesses or other relevant parties. Thereafter, follow-on or supplementary meetings are standard fare (e.g. for clarifications, eliciting of response(s) to witness statements).
Recording of Interviews
There should be a secretary or notetaker in attendance at the interviews. Subsequent thereto, yet within a specified timescale, interviewees should be given the draft minutes – often described as ‘settled meeting notes’ - and extended the opportunity to offer clarifications. However, the investigator reserves the right to determine the status of any such contributions.
Inform Parties of Findings
The complainant and the alleged perpetrator should be informed in writing of the findings of the investigation. That is, whether – on the balance of probabilities - the complaint/s is/are upheld. As part of this process, it is appropriate to allow the parties to view the draft report (for the purpose of correcting factual inaccuracies). On issuance of the final report, parties may be afforded the right of appeal to a third party (as specified in the Health and Safety Authority’s Code of Practice).
This appeal is often confined to the findings vis-à-vis adherence to the terms of reference and must be lodged within a specified timeframe. Alternately, some practitioners do not extend such a right in respect of the investigation report itself, noting that – as specified in their terms of reference - an appeal facility exists via the disciplinary procedure (for the bully/harasser) or the grievance procedure (for the dissatisfied complainant). However, yet again, the granting of this right of appeal may well be the most effective way of ensuring that the process does not become the subject of a successful action.
On receipt of an investigator’s final report, the management should take appropriate action. This may include initiatives designed to maintain good working relations, invoking the organisation’s formal disciplinary procedure (against the bully/harasser or the complainant making a vexatious or malicious claim), mandatory training or other appropriate interventions deemed necessary to prevent a recurrence of the behaviour and in line with the maxim that ‘the punishment should fit the crime’.
Confidentiality Is Crucial
Whilst the principles of natural justice, evidence of criminality or a risk to employee health and safety can cause a policy’s confidentiality clause to be overridden, the frequently used term of ‘complete confidentiality’ should be strictly adhered to.
Of course, the alleged bully/harasser must be made aware of the allegations against him/her, be allowed to respond thereto and to nominate witnesses and to know what’s in the witness statements. That is, on completion of all interviews, parties to the complaint (i.e. the complainant and the respondent) should be provided with a copy of the minutes of the interviews conducted (i.e. the ‘settled meeting notes’). Hence, confidentiality should be assured insofar as is reasonably practicable and all parties advised that inappropriate breaches thereof could ignite disciplinary sanctions.
How To... with Dr. Gerry McMahon
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