Bullying and Harassment Investigations

Bullying and Harassment Investigations:

The Do’s and Don’ts

Bullying and harassment complaints and investigations are always difficult to navigate. However, if the #metoo and related news coverage throughout the last year has taught us anything, it is that every complaint requires considerable care and attention to ensure a fair and thorough process and appropriate outcome.

We’ve compiled some of the most important Do’s and Don’ts to keep in mind when commencing an investigation.

Do

  • Have a policy that provides definitions of bullying and harassment, outlines the processes for making a complaint and for investigating
  • Use an impartial investigator – if you do not have the appropriate person internally, use a third party
  • Respond quickly, and complete the investigation as soon as possible. This can take significant time. If capacity is an issue, using a third party to conduct the investigation for you will help to make sure it is done correctly and in a timely manner
  • Consider the legal risks – the health and safety of employees comes first and bullying & harassment is covered by the Health & Safety at Work Act, so you must be mindful of your legal obligations. There is also a risk of a Personal Grievance being raised, breach of contract and/or good faith provisions, and claims of discrimination under the Human Rights Act
  • Balance the rights of the complainant and the respondent – you have a duty of good faith and confidentiality to both.
  • Offer support – provide links to support services and check in with the employee throughout regarding their wellbeing
  • Keep meticulous documentation. Most investigators now audio record meetings (after seeking permission) to save time on note taking and to ensure an accurate record. Alternatively, get the notes checked and signed at the end of the meeting
  • Communicate – you should keep all parties updated on the timeline and the process you’re following

Don’t

  • Have the investigator also be the decision maker – these must be two separate roles
  • Do nothing just because the complaint isn’t in writing
  • Leave the status quo in place while you investigate – you need to consider at the beginning if either the complainant or the respondent should relocate to a different work space, team or shift for the duration of the investigation
  • Default to a full-scale investigation. Regardless of whether you receive a ‘formal’ or ‘informal’ complaint, you will need to assess the complaint and decide whether it requires a ‘formal’ or ‘informal’ investigation and communicate this to the complainant, including the rationale
  • Withhold information – providing the respondent with the relevant information is an important aspect of natural justice. They need to know the identity of both the complainant and witnesses. In some cases, withholding certain information may be justified – but only when it is not prejudicial to the respondent
  • Don’t use a mixture of written statements, phone calls and meetings – choose one method (ideally face-to-face) and use it for the respondent, complainant and all witnesses
  • Engage in ‘off the record’ conversations with witnesses
  • Consider any information in the investigation that is gleaned from “secret” witnesses unless they are prepared to share their identity
  • Draw inferences from demeanour – people react differently to stressful situations so it’s important to only analyse what they say and not body language or facial expressions

Positive People are experienced in conducting independent third-party investigations for bullying and harassment complaints. Call us on 09 445 1077 or email info@positivepeople.co.nz

Employer Responsibilities ‘After Hours’

What are my Employer Responsibilities for “After Hours” Employee Activities? 

With the Christmas season upon us, celebrations underway and festive cheer being spread, now  is a good time to be aware of your employer obligations, not only for workplace conduct, but for all the happenings that may occur outside of work hours….

Many of your staff will not only attend your official Christmas party, they will celebrate with customers, with suppliers and have “unofficial” celebrations amongst themselves.  This stretches the potential for inappropriate conduct far wider than only being confined to the official two hours of Company celebrations.

Here are some key things to be aware of:

Getting to and from the Company Christmas party

As a function promoted and paid for by your business you must ensure, as far as is reasonably practical, the health and safety of your team. This extends to the responsibility for making sure your team are safe getting to and from the event. The biggest danger is drink driving. Make sure you have set clear expectations and communicate in advance the need for safe travel. Its also a good idea to have someone monitoring staff as they leave and taxi chits on hand to use if you think someone is at risk.

Questionable acts during a Christmas function

Just like at work, at the Christmas party you still have the responsibility to ensure your team are safe from sexual harassment, bullying or discrimination. It makes sense to designate some of your team to take on a hosting role to ensure that bad behaviour doesn’t occur and educate them on what to do if they see or hear something that shouldn’t be happening. Music and Christmas cheer do result in more casual behaviour, so have a sound plan in place to keep your team safe.

Behaviour at unofficial celebrations or after the Christmas party

At this time of year “unofficial’ celebrations start as well – whether it’s team drinks after work, Secret Santa’s or carrying on after the Christmas party. Key with any of these is to be clear with your Managers about what is a work function and what isn’t. If an employee in a leadership position organises or promotes the event, if the Company pays for it or if it’s advertised using the Company name, then your business is likely to have health and safety responsibilities.

Celebrations with customers or suppliers

During an event with customers or suppliers your team members are still representing your Company, and as such there is a safety consideration and a need to adhere to your Code of Conduct. Educating your team on this will help to save any embarrassing complaints about their behaviour after the event…

Social Media

Social media has blurred the line for many people around what’s private, what’s public and what thoughts and feelings are OK to share. At any time of the year any public post which impacts negatively on your business or could be perceived as bullying or harassment of a team member should be investigated. It may be made outside of work time, but the impact will be felt during work hours, so you must address this and educate your team on the impacts of their actions. Having a clear policy on posting photos during Company events also helps.

People don’t want everything they do live streamed on Instagram!

In todays environment, where the health and safety of our teams is paramount it is no longer acceptable to say “If it’s 5pm, our employees aren’t our responsibility”.

Being knowledgeable about your responsibilities will help you minimise risk and keep your team safe – a win/win for all.

Positive People have 24 years’ experience helping organisations understand and manage their HR obligations. Call us today on 09 445-1077