So, the results are in, the investigation is now complete – but as an employer or HR leader, your work is not yet done. In fact, the real work to restore the workplace is just beginning. This is the final installment of our 3 part blog series on the steps and what to consider in the life cycle of a harassment complaint:
Part 2 – Conducting the investigation
Part 3 – Post-investigation
No matter how well a workplace investigation is planned and carried out, the process itself will often leave the work environment tense and awkward in the aftermath. Whether the complaint is substantiated or not, there will usually be lingering emotions or hurt feelings at the end of it which requires intervention.
This is a crucial phase for you to follow through on the findings of an investigation in order to demonstrate the company’s commitment to protect the health and safety of your employees. Tangible actions here will move the parties forward and restore the workplace so that work can continue.
From my experience, an employer’s silence and inaction to close the loop once a complaint is filed is a sure way to increase legal risk as there will inevitably be impacts to trust, morale and productivity in the workplace.
The focus of this article will be to examine some tips and actions you as a business or HR leader can take to help reduce your liabilities and restore a harmonious and safe work environment post-investigation.
What actions to take
Plan and decide internally what actions will be taken as a result of the investigation findings. It could be remedial coaching, training, transfers, program development, apology, discipline, termination and so on. Disciplinary action may be necessary in the event there is merit to the complaint and in that case, the respondent’s employment file will need to be reviewed to determine the appropriate action. In other cases, the behaviour may not have amounted to the level of workplace harassment, bullying or discrimination, but a problem of workplace incivility or conflict still exists that need to be resolved. Therefore, whether the complaint is substantiated or not, some action may still be necessary.
Assess options for resolution
Provincially-regulated employers are legally obligated to investigate upon learning of a workplace violence or harassment complaint without considering other ways to resolve first. Given this, you can assess options for dispute resolution (i.e. mediation if appropriate) once the findings are known. Determine whether there is an opportunity to bring the parties together to clear the air and work towards repairing the damage in order to get back to work. Both sides must consent for this to work.
Scenarios this can typically apply to involve investigation findings where the complaint was not substantiated and there appears to be an honest misunderstanding. Alternatively, it can also be in cases where the complaint was substantiated and the respondent recognizes wrongdoing. In this case, a personal and sincere apology can go a long way in helping the parties restore and continue the working relationship.
Meet and communicate results
Meet with the parties of the complaint to promptly communicate the results of the investigation and any actions that will be taken to minimize re-occurrence should the complaint be substantiated. Schedule time (in person where possible) to review the investigation results separately with the complainant and the respondent. As a general guideline, some suggested points of discussion include:
For the complainant:
- Highlight process undertaken to investigate their complaint as part of company’s commitment to ensure a healthy and safe environment for all.
- Thank them for bringing this matter to your attention and that the company takes these complaints seriously.
- Review expectations to keep everything discussed confidential and protect the privacy of all involved in the investigation.
- Review the results of the investigation – whether their allegations have been substantiated.
- Summarize any corrective actions that will be taken if any while balancing confidentiality.
- Review policy or process that they are protected from retaliation and to inform HR if they have any concerns or encounter a similar incident in the future.
- Periodically check back with the complainant to make sure all has been resolved.
For the respondent:
- Review the results of the investigation and what corrective action will be taken if any.
- If the allegation is not substantiated, thank the respondent for their participation in the investigation and assure them that nothing will be placed in their files regarding this investigation. Empathize with their experience and share that they continue to be a valued employee with the company.
- If allegation(s) is substantiated, review and reiterate company expectations and relevant policies on code of conduct, anti-violence/anti-harassment/anti-discrimination to ensure there is a clear understanding and compliance regarding professional behaviour, maintaining confidentiality and no reprisals.
- Explain what actions would be considered a reprisal and that retaliation of any kind would not be tolerated.
- Include the investigation results and corrective actions in the respondent’s employee file if applicable.
- If there is remorse, ask the respondent for suggestions on what they can do to make things right and restore harmonious relations (i.e. issue a sincere apology).
This can involve targeted communications with the union (if applicable) and Health and Safety committee about the conclusion of the investigation. Or it can also involve a general employee communication to help calm the rumour mills and rebuild some trust and sense of safety for employees if the investigation involved many witnesses and the situation was widely known in the workplace. In this case, it would be prudent to hold a larger team meeting to cycle back and communicate the following:
- The conclusion of the investigation and what proactive measures would be put in place at the organizational level to avoid such incidents from occurring in the future (i.e. training, coaching, conducting a workplace assessment, etc.).
- Reiterate the company’s values and continued commitment towards a harassment and discrimination free work environment.
- Take the opportunity to thank those who were involved in the investigation for their active participation in helping the company get to the bottom of the situation.
- Highlight it is everyone’s responsibility to create a positive and psychologically safe work environment and encourage employees to speak to HR regarding concerns as they arise.
At times, the complaint is only the tip of the iceberg. Workplace climate issues may be systemic. When there are other signs and symptoms in the workplace such as increased absences, sick leaves, turnover, hyperactive rumour mills, low morale and productivity to name a few, this may signal that more needs to be done to get at the root of the problem and restore the workplace. Particularly, if there is suspicion that harassment/ bullying/ discrimination issues are more widespread affecting overall workplace culture and creating a toxic work environment, a workplace assessment would be recommended.
The purpose of this process is to uncover underlying issues impacting the workplace climate or culture. Employees are more likely to open up to a neutral third party in these situations and the goal would be to develop targeted action plans from the findings of the assessment. It is only when you understand the root causes of issues can you then be in a better position to address them and work on improving and restoring the workplace from there.
Review and revise policies
Any inconsistent applications of the company’s anti-harassment/anti-discrimination/anti-violence policies may expose the employer to increased liabilities. Some policies may initially sound good in theory but when applied, gaps in procedure may be identified. Therefore, once an investigation is completed, this is the time to review and make any adjustments to procedures and expectations set out in the policies. Do it while your memory is still fresh. In doing so, all will have a better understanding of what to expect and will serve to promote consistent application of the policy going forward.
The above steps and strategies I’ve outlined in this article provide some guidance for employers and HR on what to do next after an investigation is complete. This is a vital stage in the life-cycle of a harassment complaint as parties involved in an investigation will often still need to work together after all is said and done. Taking steps to restore relationships and the workplace is necessary to diffuse interpersonal tension and conflict so that a psychologically safe and healthy work environment can be restored.
The content shared in this blog post is for general information only and does not constitute legal advice.
At Strategywise HR, we understand the HR challenges employers face and the workplace laws that affect you. Our focus is in helping medium-sized employers make informed people decisions that reduce risk and costly exposures for the organization.