Fairness in Workplace Investigations: How Much Should Respondents Know?

Fairness in Workplace Investigations - How Much Should Respondents Know
Labour Relations

Workplace investigations are increasingly complex. New workplace investigators often struggle with how much information to share with the Respondent during the investigative process.

Questions often arise such as:

  • How much information is a workplace investigator required to share?
  • How much information should be shared before the Respondent’s interview?
  • What impact will disclosure or non-disclosure have on the outcome of the investigation?

What is the Standard of Fairness?

As a workplace investigator, you are a neutral third party and it is expected that you carry out your investigative process in a fair and objective way. In other words, in your role, you cannot “favour”, or even be perceived as “favouring”, one party over another. Ensuring that you are equitable towards both the complainant and the Respondent in a workplace investigation helps facilitate procedural fairness and is an essential component of your role.

Further, workplace investigators must remember that when the investigation is complete, their report and the entire investigation process may be subject to scrutiny. This scrutiny includes how “fair” the process was for the parties involved. A key element of this “fairness” includes how much and when information is shared with the Respondent.

Disclosure to the Respondent

Prior to an investigative interview with a Respondent, the Respondent should be made aware of the following:

  • What are the allegations made against them;
  • Who is making the allegations against them;
  • Where the alleged incident(s) took place;
  • When the alleged incident(s) took place.

Further, a respondent should also be advised:

  • that they will have the opportunity to respond to the allegations made against them;
  • that they will have an opportunity to provide their version of events; and
  • that they will be permitted to provide the investigator with the names of relevant witnesses that they would like the investigator to interview.

In addition, when the respondent is provided with the above-noted information, they should be given a reasonable amount of time to prepare for the investigative interview. The amount of time required will depend on the number of allegations made.

Conclusion

The role of a neutral workplace investigator is to find and document the facts. When guilt or innocence is pre-judged, the workplace investigator does a disservice to the investigation and all those involved. Workplace Investigators must remain open to all possibilities, ask appropriate questions, and document the evidence. Providing the respondent with the information noted above is a crucial step in creating a procedurally fair process.

In preparing this article, the author interviewed Jamie Eddy, K.C., a senior labour and employment lawyer with Cox & Palmer in Fredericton, New Brunswick. Mr. Eddy noted that  providing respondents with the allegations made against them prior to their investigative interview is “critical” to the entire investigation process. This step provides a respondent “a key element of procedural fairness”. Mr. Eddy warned that should workplace investigators or employers not provide respondents with the allegations made against them before their investigative interview, they leave themselves open to allegations of procedural unfairness.

For additional support, I have provided a ‘Sample Respondent Letter’ (download a PDF below) for your use. Should you be required to need a letter like this in the future, you can adjust this letter to fit your specific requirements.

About the Author

Devan CorriganDevan Corrigan is an expert in workplace investigations and labour relations, having spent 20 years in human resources management and labour relations before founding an HR consulting company in 2017. He specializes in conducting workplace investigations including investigating complaints of harassment, sexual harassment, violence in the workplace, and other forms of employee misconduct. He holds a Master of Industrial Relations from Queen’s University as well as an Honours Degree in Psychology and a certificate in Human Resources Management from Saint Mary’s University. Devan’s expertise in human resources and labour relations, combined with his background in psychology, make him a go-to third-party workplace investigator. He is a member of the Association of Workplace Investigators and is on the roster for investigators for the Workplace Investigator Network (WIN).

Devan is the lead facilitator for the Queen’s IRC Mastering Fact-Finding and Investigation program.

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