Do you need an investigation?
Employers have a duty to provide a safe and harassment-free workplace.
But that doesn't mean a formal investigation is required whenever a complaint of harassment or bullying is received. Investigations are resource intensive and hard on people; they are only necessary in certain circumstances.
Let's discuss your options before you decide.
If an investigation is necessary, then it needs to be conducted by a competent and impartial investigator. A flawed investigation may expose an employer to additional risk of liability.
Findings of Fact
Regardless of whether you opt for an investigator that is internal or external to your organization, that individual must be competent.
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Competency means that the investigator has training and knows how to apply key elements of evidence law, such as:
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determining whether the information gathered meets the burden of proof on a balance of probabilities
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weighting evidence, especially hearsay
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credibility analyses based on generally-accepted and non-arbitrary factors
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how to navigate tricky evidentiary situations, for example where the only evidence available is the word of one party against the other
Procedural Fairness
A competent and impartial investigator also knows how to run a fair process. While the key principles of procedural fairness are simple, their consistent application amidst the complexities and nuances of a functioning workplace can require careful reflection.
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Key elements of procedural fairness include that:
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The Respondent(s) have notice of the allegations with sufficient detail to meaningfully respond
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All Parties have the opportunity to be heard by a neutral decision-maker
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All participants are protected against retaliation
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The Parties are informed of the outcome of the investigation
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A written investigation report is produced to enable the employer and any reviewing body to understand the investigator's findings and the basis for those findings.
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Trauma-Informed
To mitigate the inevitable stress, distress and potential (re)traumatization of all involved, a skillful investigator can build trauma-informed practices into an investigation process without sacrificing procedural fairness.
As investigators, we give voice and choice whenever possible. A trauma-informed investigation always tries to be human-centered. We aspire to create conditions that support participants' capacity to speak openly about difficult and stressful topics. Whenever possible, we gather evidence using non-adversarial methods.
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Taking a trauma-informed approach is, by definition, non-proscriptive. We work with the parties and the employer to design a process that is responsive to the specific needs and requirements of the situation. We think that taking a collaborative approach to process design helps parties to accept investigation results. At the end of the day – while the parties may not agree with the outcome – they know they have been seen, heard, and taken seriously.
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Consider R&B when the issues are
complex or sensitive
Sometimes the "standard procedure" doesn't meet the needs of specific situations or individuals. ​
We enjoy working with employers to craft context-sensitive responses that honour both human dignity and the best interests of the organization.
Executive Leadership
& Governance
When allegations implicate senior leaders or cut across oversight & operations structures within the organization, additional considerations such as public relations and institutional credibility must be factored into the employer's response.
When the parties have intersecting identities, the analysis of harassment and discrimination must account for the compounding effects of intersectionality.
Alleged conflict and harms within and between members of equity-deserving groups is particularly tender and perilous terrain. Let us help you develop a culturally-competent response.