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Policy pet-peeves: Crafting a workplace harassment policy that will make workplace investigations easier

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The first step in any new investigation is to review the workplace harassment policy. As both an investigator and someone who has written workplace harassment policies, I sometimes find myself sighing deeply as I conduct this review, knowing that some parts of the policy are going to make the investigation process harder – not only for me, but for the parties and the employer as well.

The most important part of drafting a harassment policy is obviously ensuring that it meets the requirements of your local legislation (for example, in Ontario, the Occupational Health and Safety Act outlines certain requirements of workplace harassment policies). When drafting or revising the policy, however, there is also an opportunity to ensure that the organization has put in place an investigation process that allows investigations to run smoothly, and helps maintain and restore the relationships between the parties as much as possible. So what should you consider when drafting your harassment policy?

1) Will all witnesses be identified?

Some policies require that the parties be provided with a list of the witnesses interviewed during the investigation. Conversely, other policies require that witness names not be disclosed, and that witnesses be anonymized in the final report. There are concerns associated with both of these approaches.

Automatically keeping the identity of witnesses secret can lead to a sense that the process is unfair and not transparent. It can also result in absurdity as, in some cases, it is obvious from the particular circumstances and the questions put to the parties that the investigator has spoken to a specific individual. Conversely, a policy that requires witness names to be disclosed in every case can have a chilling effect and result in witnesses refusing to participate in investigations.

What to consider instead: A policy that allows for witnesses to be kept anonymous in some cases, at the investigator’s discretion, and provides flexibility for the investigator to make that call – when it is warranted and when withholding the witness’ identity would not result in any procedural unfairness.

2) Will the parties have access to the investigator’s notes?

It might be tempting to craft your policy with a provision that the parties will be provided with a copy of the investigator’s notes, both in the interests of transparency and to allow for the correction of any errors or omissions. Keep in mind, however, that the investigator might want to record in their notes initial thoughts or questions about what they are hearing in the interview. If the investigator knows that they are working under a policy that allows the parties to review their notes, they might be reluctant to do so (nobody wants to write, “The respondent answered the question in a curt and defensive manner,” if the respondent will then have access to the notes.) Furthermore, allowing the parties to “correct” the investigator’s notes can lead to a party taking the opportunity to re-frame their answers in a more flattering (and perhaps less accurate) way.

What to consider instead: If the goal is to ensure the accuracy of the information gathered by the investigator, this can be accomplished by permitting the audio recording of interviews. Alternatively, a policy can authorize the parties to review a summary of the investigation interview, while allowing the investigator to keep their actual notes confidential.

3) Will the parties be allowed to review a draft report or the entire investigation report?

Some policies allow the parties to review a draft of the report and provide feedback to the investigator before the report is finalized. While this may seem useful to ensure that the parties can correct any errors before the report is finalized, in practice, it often becomes an exercise in arguing with an investigator’s findings. Ideally, the investigator has already heard and considered all the evidence at that stage, and accordingly giving the parties further opportunity to present their case results in nothing but frustration and delay.

Other policies state that the parties will receive full copies of the report once it is complete. While having the parties review the full report is the ultimate in transparency, it can be problematic when you have a final report that contains a great deal of personal information and/or information that could be inflammatory and cause further breakdown of a relationship. Accordingly, including in your policy a provision that the parties will receive the full report can actually do more harm than good.

What to consider instead: You want to ensure that the parties receive sufficient information to let them be satisfied that the matter was fully and fairly investigated, and to allow them to understand the outcome of the investigation. In most cases, this can be done through provision of a summary of the report, rather than by providing the full report itself. This maintains a balance between transparency and protecting private information and inter-personal relationships.

Investigations can be difficult for all involved, but taking a few proactive steps to include a process within your harassment policy that makes sense for your particular workplace can save both time and effort, and prevent a great deal of disruption down the road. Your employees – and your workplace investigators – will thank you for it.

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