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Protecting the bystander: Strategies in workplace harassment prevention and investigations

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After years of research and related policies and training, workplace harassment prevention remains a challenge for many employers.  The reality of this persisting problem in many workplaces demands further education and new and creative responses, especially when considering the role and impact upon bystanders.

Bystanders are individuals who observe harassment in the workplace firsthand.  Depending on how inclusive a definition one chooses to adopt, bystanders can also include those who are subsequently informed of the incident.  Accordingly, bystanders can include a range of people, including co-workers, managers or supervisors, human resources and union representatives, and other individuals to whom harassment is reported.  Co-workers who are informed of harassment through the workplace grapevine can also become bystanders.

A growing area in prevention strategies are ‘bystander approaches’.  This strategy focuses on the ways in which individuals who are not the targets of the conduct can intervene in harassment in order to prevent and reduce harm to others.

Reprisal protection

In order for bystanders to feel supported in reporting harassment in the workplace, there must be a workplace culture that supports reporting.  Many bystanders who are considering reporting harassment are understandably nervous about the possibility that their involvement will lead to a negative consequence in their employment.  Bystanders should be made aware through bystander intervention training and related policies that any such negative repercussions would constitute a “reprisal”, and would be in contravention of an applicable statute or policy.  Furthermore, training and policies should communicate that retaliation by other employees will result in disciplinary measures to those employees.

Workplace investigations

In the context of workplace investigations, employers should provide bystanders with the reassurance that their employment will not be negatively impacted by virtue of their participation in investigations into allegations of harassment.  Employers should also consider authorizing the investigator to provide the same assurance.  Investigators might find it appropriate at the commencement of an interview with a bystander to reference applicable policies that specifically make clear that reprisal protection exists for bystanders.  Bystanders can also be given some comfort in an assurance given by both the employer and investigator that the investigator will only disclose to the employer the information the investigator believes is necessary to fulfill his/her mandate.

Support systems for bystander stress

Employers should be cognizant of the range of negative impacts that harassment can have on workplaces, including the phenomenon known as “bystander stress”.  Observing or hearing about the harassment of co-workers can create bystander stress and other negative outcomes (such as post-traumatic stress disorder) that parallel those experienced by the direct targets of harassment. Bystanders can feel frustrated over their perceived inability to intervene, and become angry at their employer for failing to prevent or stop the harassment. They can become distracted and unfocused, and, in turn, their stress can have a significant impact on effectiveness at work. Bystanders can become withdrawn, have difficulty processing information, and have higher rates of absenteeism.  The resulting cost to employers includes high turnover. While some bystanders may choose to resign, others may be terminated due to poor performance brought on by bystander stress. This results in the organization keeping the perpetrator and losing an employee who may have previously been very productive.

Bystanders should be made aware of the support systems available to them.  Levels of support to the bystander can include any benefits to which bystanders are entitled by virtue of their employment with the organization, such as Employer Assistance Programs (EAPs) which provide employees with access to various types of counselling or psychological support, as well as workplace accommodation.

Unfortunately, many managers are not trained in identifying signs of bystander stress.  Even where harassment issues are known, many managers do not connect deteriorating job performance with bystander stress.  Accordingly, in addition to bystander training, employers should also consider adapting training at the management level to address bystander stress.

Phanath Im

About the Author: Toronto Employment Lawyer Phanath Im practices in all areas of employment law. She is a former Ministry of Labour prosecutor with special expertise in occupational health and safety (OHS) matters. Phanath’s OHS practice includes defending workplace accident-related regulatory charges, accident response, reporting and investigation, and managing OHS inspections.