You hear things.  A whisper here and there.  An overheard comment about a colleague crossing the line with another colleague.  Repeatedly.  Or maybe it’s more than a whisper.  Maybe it’s more of a resounding chorus.  And the voices are all offering alarmingly similar and compelling descriptions of a colleague engaging in a pattern of behaviour that – according to multiple reports – is decidedly unwelcome.  The information may even be set out in writing in a formal letter of complaint.  But the author of the letter has chosen to remain anonymous.

Whatever the circumstance, the result is the same: you have some degree of awareness of workplace conduct that is potentially problematic but no one has come forward to complain, and you wonder what – if anything – needs to happen next.  Depending on your role in the workplace and the nature of the alleged misconduct, you may even have a duty to act – promptly.

Employer-Initiated Investigations

Somewhere between going on an ill-advised “fishing expedition” and commencing a clearly defined investigation of a formal complaint, lies a grey area rife with uncertain legal obligations and sticky situations.  It can be daunting for employers to commence a workplace investigation at the best of times.  With no clearly identifiable complainant, a reluctant complainant, or, multiple complainants comprised of some mixture of the above; it can be even more nerve-wracking.

A 2014 study conducted by the Angus Reid Institute revealed two noteworthy realities about the workplace in Canada:

• A total of 29.5% of Canadian men and women surveyed said that they have experienced sexual harassment or unwanted contact or both in the workplace.
• Four out of five of those participants who indicated that they had been harassed and/or experienced unwanted contact said they never reported it to their employer[1].

The same study suggested that there are many reasons why an individual might choose not to report on their experience to their employer: fears about the potential repercussions on work relationships and career trajectories among them.  Some survey respondents cited the fact that they did not have confidence in the employer’s ability to respond well.

Of course, the objective is not to become overzealous or excessively prone to launching formal investigations at the first inkling of discontent in the workforce.  Rather, the goal is to build up the capacity to be responsive when you have knowledge of genuine concerns of harassment and discrimination by having a range of tools readily available.

The following are some thoughts on how to reduce the uncertainty for those occasions that demand action on the part of employers.

• First things first: do you have to do anything and if so, what?

It’s possible that you don’t, but it’s likely that you do.  Not only is there ever-growing consensus around the social and moral imperative to be proactive when there is problematic behaviour in the workplace, there is often also a legal imperative to do so.

This has been evident from the case law for some time.  It is also increasingly becoming codified in legislation.  Under Ontario’s Occupational Health and Safety Act (“OHSA”), employers are obligated to conduct investigations into incidents and complaints of harassment that are “appropriate in the circumstances”[2].    Federal employers will also soon contend with enhanced requirements to prevent “workplace related occurrences of harassment and violence, physical or psychological injuries and illnesses” and to investigate, record, and report, occurrences of harassment and violence, known to them.  Notably, the duty to investigate is triggered with awareness of the incident and is not premised upon receipt of a written complaint[3].

That said, a full investigation may not be required in every instance.  There may be some room for flexibility.  Early resolution of concerns through informal mechanisms and facilitated dialogue, for example, may be enough.  Even in jurisdictions with more prescriptive legislation, there may still be options in terms of the process an employer adopts to address contentious employee conduct. Selecting what is suitable will largely be driven by the nature of the alleged misconduct.  The more objectively serious in nature and severity, the more likely it is that a structured investigative process will be required.

Keep in mind that different processes yield different outcomes and accordingly, distinct foundations for further action.  At the end of an investigation, for example, the employer will be equipped with factual findings and an evidentiary foundation for taking corrective or disciplinary measures.  This is not the case for an informal resolution process or a broad workplace assessment that elicits anonymized subjective information from employees.

• Communication is Key

Once you have made the decision to investigate in the absence of a formal complaint, crafting appropriate communication with the people who will be participating in the process is of critical importance.   Investigators in such a scenario may find themselves seeking input from employees who are ambivalent or even angry about the employer’s decision to investigate.  They may question the legitimacy of the process itself.

There is also a need to consider the confidentiality inherent in investigating any alleged workplace misconduct.  It’s likely that the alleged behaviour is sensitive, and if it is tied to a particular respondent(s) or potential victims, this could bring adverse work-related consequences if employees were to jump to conclusions before the process is concluded.  That being said, staff will need to be told something about the process the employer will be undertaking in order to secure their participation.

Once a determination has been made about what can be said without breaching confidentiality, communications to staff should be clear and direct.  Explain the rationale for investigating and reinforce the employer’s commitment to providing a healthy and safe work environment.  Repeat the message consistently both verbally and in writing.  Consider ways to minimize the disruptive nature of an investigation and preserve workplace relationships to the greatest extent possible.  For example, avoid exaggerating the severity of (or in some cases sharing at all) the allegations or highlighting especially inflammatory remarks that do not need to be highlighted.  Think about how individuals you interview should be identified, especially if they are resistant to being called complainants.  It may be that none of the standard descriptors of parties are particularly fitting such that you avoid labelling altogether and simply reference the person as someone consulted in the investigation.  The language you use should be accurate and transparent.  But this can still be achieved with more neutral or diplomatic word choices that do not exacerbate tension in the workplace needlessly.

• Invite Participants to Contribute to the Process

Given that alleged victims of inappropriate workplace behaviour who have chosen not to complain may be resistant to an employer-initiated investigation, it can be helpful to find ways in which they can contribute to and take some ownership over how it is carried out.   They may have ideas about interim measures that would be suitable to put in place while the investigation is pending.  Listen and incorporate what is feasible into the investigation plan.  Think about the timing of interviews and accommodate requests to hold them sooner or later where such requests do not conflict with the objectives of collecting information in a timely manner.  Employees on medical leave precipitated by incidents of alleged harassment may ask to defer their interview until they are ready and able to participate meaningfully.  It may be appropriate to grant this type of a request in the interest of conducting a fair and thorough investigation.

Final Thoughts: With Challenge Comes Opportunity

When there is no complainant or identifiable party willing to come forward, but the employer has knowledge of conduct that, if admitted or proven, would likely constitute harassment or discrimination, the employer should take action to learn more.  If it is determined that the employer needs to commence a formal investigation despite no one having complained, alleged victims may be ambivalent, reluctant, or even opposed to the process entirely.

As much as these situations can be challenging, they also present a real opportunity: an opportunity to send a message to employees about what behaviour in the workplace is acceptable and what is not.  If done carefully and thoughtfully, they allow employers to demonstrate their commitment to the values enshrined in policies and legislation.  And, they can foster employee trust and confidence in the employer’s capacity to respond to unacceptable workplace behaviour.

As my colleague Dana Campbell observed in her recent blog, “Too Scared to say #MeToo: Are you the Silencer?, when victims of harassment choose not to come forward with a complaint, the decision can often be attributed to concerns about organizational indifference and other negative attitudes within the culture of the workplace.  Employer-initiated investigations can shift the workplace culture in the right direction.

Employers embarking on the uncertain path of investigating in the absence of any known complainant can take courage and comfort: this is a unique opportunity to lead by example.

[1] Angus Reid Institute: www.angusreid.org/sexual-harassment/

[2] OHSA, R.S.O. 1990, c. O.1., s. 32.0.7(1)(a)

[3] Library of Parliament, Legislative Summary of Bill C-65: An Act to amend the Canada Labour Code (harassment and violence), the Parliamentary Employment and Staff Relations Act and the Budget Implementation Act, 2017, No. 1, online at: https://lop.parl.ca/staticfiles/PublicWebsite/Home/ResearchPublications/LegislativeSummaries/PDF/42-1/c65-e.pdf