Investigating or ambushing?

I wrote previously about deciding whether to investigate harassment or bullying incidents and the kinds of questions you need to ask to determine whether to investigate. This is very different from incident investigations.

When investigating a harassment or bullying complaint or report, the first question should be whether or not the events described violate a policy or law. That threshold question determines if you need an investigation. There is no phase where you gather more information, or perhaps there is.

First contacts with the personnel involved in an investigation are critical because they can set the tone for the investigation. An investigator looking into a bullying or harassment complaint normally has first contact with a complainant to understand the complaint and establish the allegations. The first contact for most investigators is to outline the expectations and the relationship.

First contact with the respondent is normally to inform them there has been a complaint and that an investigation will occur. However, the first contact from the investigator is normally to set up an interview to discuss specific allegations, which the investigator would provide, in writing, in advance of the interview.

Providing the allegations in advance is done for many good reasons. Firstly, the complainant has had time to reflect and outline their concerns in a complaint. The respondent needs the same consideration. They need to be given time to absorb the allegations and prepare a response.

Respondents have a right to know what they have been accused of and what the investigation is actually about. This means disclosing the allegations in writing.

In some cases, organizations do not have a process for handling harassment or bullying complaints and investigations. For reasons unknown, these organizations engage in a practice known as ambushing. Ambushing is when a respondent is called to a meeting and given no information. It is something the courts take issue with in terms of rights and bias.

Some organizations call employees to these meetings and then talk about allegations. They provide nothing in writing. They asked the respondent to comment on these allegations. Sometimes they outright demand that they respond to the allegations. Sometimes they ask for some context or their views on the allegations.

This is a problematic practice. First and foremost, they violate the rights of the respondent. Such interrogations, without any prior information, would put anyone on the defensive. It is human nature to try to defend oneself or to try and explain why these allegations may not be accurate. These are not recognized investigative practices or even best practices. This is an attempt to trap the respondent into an admission of guilt, and in cases where respondents are not guilty cause them a great deal of anxiety and angst, which is ironically what the complainant is often about.

I said this violates the rights of the respondent. It is important in any investigation to take a balanced approach and ensure that the rights of the complainant and the respondent are respected. Assuming that a respondent is guilty and is not entitled to the same consideration as the complainant is the most odious form of bias. Ambushing the respondent in this manner does demonstrate bias on the part of the organization and the persons who, let us hope, will not be involved in the investigation.

Charter of rights and freedoms, you say? In a workplace bullying and harassment investigation with serious allegations, the respondent is in danger of losing their employment or livelihood. They are entitled to the protections section 7 of the Charter provides. Informing them of allegations and interrogating them is arguably a violation of their rights. It would certainly violate their human rights if such interrogations inflicted mental harm, which they often do.

This practice is also problematic for the investigator assigned to investigate these cases. This practice of ambushing taints the investigation. It puts the respondent on the defensive and makes them less cooperative. There are occasions where I have met with the respondent, and they have informed me that they were confronted with some verbal allegations and have heard nothing since. They don’t even know what the complaint is about. They don’t know who has complained and honestly did not know what the allegations against them were until they received the written allegations prior to their interview.

Respondents, like complainants, may need counseling and other mental health support when they are informed that there has been a complaint against them relating to workplace harassment and bullying. I would argue that it is unethical to pull someone into a room, list some verbal allegations, and get them to respond. It is hard enough for some respondents to come to grips with someone complaining about them. Being peppered with questions during that low point in their life certainly does not make for a balanced and transparent investigation.

Ideally, when first contact is made in a workplace bullying or harassment investigation, it is to communicate some key information. The employer needs to communicate that there is a reporting and investigation process and make the personnel aware of where they can consult that process. Those processes need to be sufficiently detailed to enable employees to understand how complaints are processed and how investigations are run, along with how the results of the investigation would be shared with those involved.

Most importantly, it is important for the complainant and the respondent to understand that the process is unbiased, fair, and transparent. When the complainant or the respondent gets the impression that the playing field is not level, they become quarrelsome. Complainants may refuse to provide information or answer interview questions if they feel mistreated. Both parties may insist they have legal representation and further complicate the investigation.

Complaint and investigation processes for workplace bullying and harassment must be in place and transparent. Ambushing is not investigating. It certainly does not accomplish anything constructive.