top 10 mistakes: investigating harassment complaints

1. top 10 mistakes: investigating harassment complaints september 19, 2013 presented by zaheer lakhani

2. implications of getting it wrong constructive dismissal claim human rights complaint remedies available to complainant actions for intentional infliction of mental suffering actions for negligence 24

3. mistake one:failing to provide procedural fairness

4. mistake one what procedural fairness means • name of complainant • particulars of the allegations • full opportunity to respond • decision after reviewing all evidence 3

5. mistake two:not taking the complaint seriously

6. mistake two taking it seriously • everyone has a different comfort zone • be mindful of internal biases • act quickly and respectfully 5

7. mistake three:using untrained investigators

8. role of investigators submit report investigators interview parties review any documents make finding 7

9. effective investigators knowledge personal attributes position/organizational issues • not witnesses to events • knowledgeable about the law on harassment/bullying • well-versed in the organization’s policies and procedures • unbiased • credible • facilitate resolution • sensitive • listen, interview and communicate effectively • able to identify relevant information • speak comfortably • resolve conflict effectively • lead by example • available to the parties • do not have a conflict of interest • have sufficient authority 8

10. mistake four:using an internal investigator when an external one is preferable

11. selecting the investigator internal investigator • less serious • single incident • issues are clear • external investigator • serious allegations • high level management • HR too close to the events • multiple incidents • public relations issues • police are involved 10

12. mistake five:failing to remain neutral

13. mistake five being neutral • be mindful of internal biases • try not to be persuaded by what you know about the parties • you are not “out to get” the respondent 12

14. mistake six:not documenting properly

15. about your notes proper note taking • take notes • have parties read and sign notes • list issues or discrepancies to follow up on • record facts, not assumptions or opinions • include as much detail as possible • use an investigation evaluation grid 14

16. mistake seven:failing to appreciate the psychological dynamics

17. mistake seven psychological dynamics • most people are reluctant to complain • fearful of what will happen and the seriousness of the process • may not be completely “innocent” • people sometimes stay for a long time before complaining 16

18. mistake eight:mishandling reluctant complainants

19. mistake eight the reluctant complaint • try to reassure and obtain trust but don’t sugar coat • a resolution without an investigation may be possible • don’t be too quick to start an investigation but investigate if necessary 18

20. mistake nine: applying the wrong standard of proof

21. standard of proof balance of probabilities • civil standard not criminal standard • more true than not • use a higher standard if allegations are very serious • may have to make a finding on credibility 20

22. assessing credibility factors to consider • self-interest • motivation for false statement • internally consistent • story is plausible • ability to observe events • opportunity 21

23. mistake ten:failing to advise the complainant of the outcome

24. advising the parties what information to provide • notify parties of outcome • outline how you have resolved the complaint • provide summary of findings • repair strained team relations 23

25. questionstop ten mistakes: investigating harassment complaints