How creeping goalposts can skew an entire process and leave you vulnerable on appeal.
The formal investigation of harassment and discrimination cases can be some of the most stressful and challenging work a Human Resource professional is required to accomplish. The way is fraught with peril including: heightened emotions from the main parties (complainant and respondent) and the entire workgroup, and pressure with respect to the time required, not to mention the potential legal ramifications down the road.
A lack of direction and lack of functional training in conducting a fair and unbiased process can exacerbate the problems and stresses you face.
One of the biggest problems, right from the outset of an investigation relates to what we call Scope Creep. I am sure you have heard the term or may have already been a victim of this issue. Essentially, scope creep refers to an investigation that has an unclear purpose, a lack of focus and clarity. As a result, it can be difficult or impossible to come to a relevant finding, based on the evidence, which will withstand external scrutiny. Often we are left with findings such as the classic “he said/she said” conclusion, or making conclusions on elements that were not the subject of the investigation and that the parties did not sufficiently appreciate during the course of the investigation. We find a myriad of unintended consequences as a result of scope creep including: increased anxiety and stress in the work group, increased resistance from the employee group and the union to investigative processes, increased time and costs associated with the investigation and less credible investigations as a whole.
There is value in battling scope creep. Here is how I do it.
First, I define the scope of the investigation. I ask myself this question, “What is the complainant saying the respondent did to them that would constitute a breach to the relevant policy?” This requires some information, usually provided by the client in the form of the initial complaint, along with the relevant policy.
Here is where I see the first error, typically. When people are in conflict, they will usually tell the investigator about every issue or concern they have with the other person. Our scope begins to creep. The complainant will tell you things like they did not agree with a decision that their manager made. They will bring up concerns that they have about how their co-worker has treated others. They will tell you about the thing that they heard from their co-worker, who heard it from someone at their second job that relates to the person they are complaining about. They will tell you that they know the respondent is having an extra-marital affair…and more. If you have conducted more than one investigation, you have likely experienced these examples and many more. How are they relevant to the complaint? That is a question that I ask myself, early and often. And if I cannot answer that question, I will ask the person I am interviewing. “Is this relevant to your complaint of harassment against the respondent? If so, how so?” Once you have their answer to this question in their statement, you are better able to determine if this is within scope or outside of scope. My best advice? Always have the person involved identify if they believe an issue is in-scope or out of scope, especially when it is unclear.
Next, the respondent will want to add their take on the situation, including their defense to the allegations, and any context they feel is relevant. They will also add all sorts of information relating to the complainant that may not be relevant. Again, I will ask the respondent how the information is relevant to the allegations or the complainant (if it is not obvious) and make sure their clarification is recorded in their statement.
What do we do when the complainant, the respondent or a witness provides information that is unrelated to the initial complaint, that may be about someone other than the respondent, and that could be a potential breach to the harassment policy, or to another policy or code of conduct not under review? Here is where we see the next major error point. It used to be that when we conducted investigations, and we found evidence that there was a breach to the harassment policy, no matter who had breached it, no matter if they were informed that they were named as a respondent, no matter if they had full disclosure of the allegations against them, or had the ability to prepare and be represented before responding to the allegations, we would bring in a conclusion of a breach. That has changed. It is not fair. It is not a process that we believe would be able to withstand the scrutiny of a third party, should the investigation be appealed. We have changed our process.
Here is what we recommend now. Should you, in the course of your investigation, run into additional, unrelated allegations, or any of the variables described above, you should pause, analyze the information, and suggest some additional administrative steps. The complainant brings up allegations that may be a breach against someone not yet named as a respondent? Perhaps you will take that part, disclose it to the party named, inform them of the allegation, provide them with time to prepare and get a rep, and interview them regarding the allegation. Perhaps you will instead spin off an entirely new investigation into those allegations. The approach will vary with the specific nature of the information and how it fits into the current investigation. The respondent brings up a potential breach on the part of the complainant? Perhaps you notify the complainant that there are allegations against them and they are considered a complainant as well as a respondent, and you disclose the allegations to them. The complainant, respondent, or witness brings up some information that would be a safety concern in the workplace? Perhaps you immediately refer this item up the chain of command for direction on how to proceed and which resources to access.
There are many elements of the modern harassment investigation that can take an investigator off-scope and compromise the entire process. We must be vigilant and responsive to the dynamics presented in each and every case. Our job is not to determine who the best person is, who the most right human is, or how many total “right” points are scored. Our job is to determine what the evidence is (related to the complaint that was filed) and associated with the relevant policy (the harassment policy). What did the respondent do to the complainant and was that a breach of the policy? It is that simple, and that hard.
In this time of COVID-19 isolation, we hope that our clients and friends across Canada are well, and safe. As my travel schedule has ground to a halt, I find myself contemplating our process and our training offerings. Should you have active cases that you would like some consultation with, I would be happy to review statements, evidence, question plans and reports to give you my advice in the area of scope creep and with any element of the investigation.
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