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When policies overlap

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As more workplaces fill up and public life fills in again, we have no shortage of investigations involving conflicts between individuals who do not fit into the usual employment relationship category. Our firm also assesses and investigates conflicts within workplaces like membership organizations, municipalities, and service providers who deal with the public.

These organizations may have more than one policy in place that deals with discrimination, workplace violence, or respectful workplace issues. These organizations may also have a layered governance structure or work together with other corporate entities.

Most of the internal policies I review include consideration of the conduct of their employees towards individuals the company (or the organization, municipality, or service provider) does not, strictly speaking, employ – and/or the conduct of individuals visiting or interacting with the workplace who are not employees. Once we collect the evidence from witnesses about the incidents, we need to measure the facts against the policies to see if policies were breached in any way.

First, we ask – which policy applies to the people involved? In the case of overlapping policies, which complaints procedure applies?

Even where policies and codes of conduct explicitly expect everyone in the community to act in accordance with these guidelines and to maintain a workplace free of harassment, organizations may be limited in what remedial action they can take against non-employees. And in terms of who can formally complain.

Under codes of conduct, codes of ethics, and respectful workplace policies, obligations and responsibilities tend to be all-encompassing and more inclusive in terms of scope.

For example, the scope of a respectful workplace policy might read:1

This policy applies to all individuals, including: employees, Organization members, interns, volunteers, board members, contractors, and members of the public.

This policy applies to any physical or remote workspace, work assignments outside of the office, work-related events or social activities, work-related travel, work-related communication (i.e., text, email, Slack, Teams, Zoom), and any situation where an individual is identified as an employee or member of the Organization and/or is reasonably perceived to be representing or reflecting the interests of the Organization.

Under the complaint procedures, the language is:

Concerns about harassment and disrespectful conduct should be raised as soon as reasonably possible. The Organization provides both an informal and formal process to resolve complaints in a flexible and timely manner.

Then, the policy discusses the informal and formal complaint procedures employees may access. It also goes on to protect employees from bad behaviour by members, like so:

An Organization employee who feels they have been harassed or discriminated against by a member should document the date, time, and nature of the interaction and any witnesses.

You, too, can probably appreciate here how the complaints procedure leaves out everyone associated with the organization who is not an employee who might have experienced offensive conduct. So, in the above example, there is a problematic gap between the theoretical reach or scope of the policy and its accountability mechanism.

Similarly, in terms of an educational institution, the scope and reach of the policy can be quite broad, like this:

All persons employed by the School, as well as those carrying out Board business, are covered by the Policy. This includes teaching and non-teaching staff who are temporary, part-time, and full-time employees. The Policy also applies to elected officials, members of boards and committees, student teachers, and volunteers. Visitors to the School are required to abide by this Policy.

The Policy applies to all activities which take place on School premises or connected to the workplace and during any employment‑related duties or activities, including training sessions, social media, travel, social functions, extra-curricular activities, conferences, and any Board sponsored event and/or activity.

But here, the complaints mechanism and dispute resolution procedure can be activated by “any person” in the affected community.

In the case of schools with elected trustees, trustees are not employees – they are elected by members of the public. Trustees may be empowered by policy to complain to an Integrity Commissioner or a similar body set up outside of the Board’s human resources department. A code of conduct for trustees might include this kind of language:

A Trustee who has reasonable grounds to believe that a Trustee has breached the Code may bring the breach to the attention of the Board by filing a written complaint with the Integrity Commissioner. Trustees are also required to complete the Trustee Code of Conduct Complaint Form.

Consider the scenario of a school trustee claiming harassment by a school principal at a public town hall event. The trustee is an elected member of the community while the school principal is an employee of the school board. Under the internal policies governing this community, who might be protected, who can complain, and who can be held accountable?

Or, consider the scenario where a clerical employee at a medical clinic is claiming harassment by a union president on social media. The union president, in turn, has a counter-complaint against the employee. The union president is elected, and she does not work for the medical clinic. Under the internal policies, who is protected, who can complain, and who can be held accountable?

Or, what about the scenario of patients and nursing co-workers taking issue with the behaviour of a hospital surgeon, where the surgeon is also the head of an affiliated research institute, teaches university courses, and is cross-appointed at a specialty clinic? How many policies apply? Who can complain? To whom is the surgeon accountable?

Finally, consider the scenario of a city councillor, an elected official, claiming harassment by an executive assistant, an employee of the municipality. This municipality does not have the right to sanction the council members. In this case, who is protected, who can complain, and who can be held accountable?

The answers should be clear to those who are the subject of the conduct (be it harassment, discrimination, or ethical/conduct violations) as well as to those who are accused of perpetrating the offending behaviour. When we see more than one internal policy can be applicable at a time, ideally, these policies need to be coherent. They need to be read together and harmonized. Gaps or contradictions can complicate the complaints process, the investigation, and the analysis. In a case involving a contravention of a policy by a non-employee, to fully respect the policy provisions, it could well be necessary to communicate the findings of an investigation to an organization or individual who has the ability to address the conflict.

Food for thought as we adjust to our shifting workplaces.

1 These examples are anonymized and not excerpted directly from any particular client policy.

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