Question: If an employer is investigating a harassment complaint, how much information about the circumstances or who is being interviewed should be revealed to the complainant and witnesses being interviewed? How can their identities be protected from other employees in an open workplace?
Answer: In conducting an investigation of a harassment complaint, the interview process will normally begin with interviews with the complainant and respondent, during which a list of witnesses will be identified. As the investigation proceeds, additional witnesses are often identified. The identities of the new witnesses need not be revealed to the complainant as their identities are not relevant to investigating the substance of the complaint.
In the interview process, witnesses should only be provided with enough information to direct their minds to the relevant information they possess or events they observed. To protect the confidentiality of the parties to the complaint, witnesses should be given as little information as possible.
Witnesses should not be informed of the nature of the complaint. The investigator should not show witnesses a copy of the complaint form, nor provide any details relating to the circumstances of the complaint. But the investigator may advise a witness that the employer is investigating a complaint and that the witness’ name has been provided as someone who potentially possesses information relevant to the investigation.
Revealing unnecessary details about the complaint or investigation not only poses a concern to the confidentiality of the parties to the complaint, but also imposes barriers to the employer’s ability to conduct an effective investigation. For instance, when certain witnesses become aware of unnecessary details during the interview process, they may form a version of the events relating to the complaint in their minds, which may then shape the answers they provide.
Oftentimes, going into an interview, a witness may already have some knowledge of the nature of the complaint through talking to the parties prior to being warned about confidentiality, or through word spreading around the office. The investigator may start interviews by asking witnesses if they know why they are being interviewed.
If a witness is already familiar with the circumstances surrounding the complaint, the investigator does not need to worry as much about evading mention of the circumstances.
Realistically, it is very difficult to protect the identities of witnesses from other employees in an open workplace. The employer should clearly emphasize that confidentiality must be maintained by all.
The employer may also warn all employees involved in the investigation that if they breach confidentiality, they may be subject to discipline.
At the beginning of the interviews with the complainant and respondent, the investigator should remind them of their confidentiality obligation. The confidentiality obligation encompasses the fact a complaint has been filed, the details of the complaint, the fact there is an investigation being conducted and anything discussed during the interview.
Similarly, each witness should be given the same caution regarding their obligation to maintain confidentiality and to not disclose anything discussed during the interview. Witnesses should also be reminded not to discuss the interview with the complainant or respondent, and that if the complainant or respondent approaches them about the matter, they should report back to the employer.
Tim Mitchell practices management-side labour and employment law at Norton Rose Fulbright’s Calgary office. He can be reached at (403) 267-8225 or firstname.lastname@example.org.
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