What laws and requirements relate to bullying & harassment investigations?Posted in : Seamus Says - Employment Law Discussion on 6 April 2018
Q. Could you please set out the laws and requirements relating to bullying and harassment investigations?
Seamus: The key document that I use whenever I'm advising in relation to this and I think it's a really helpful tool for any HR manager would be the Labour Relations Agency. There is a guide to bullying and harassment in the workplace that they have. I think it's tied into the Equality Commission as well.
Scott: Is this the blue one?
Seamus: Yes, the infamous blue document that they have there. It really sets out the process and the best practice for the employer to deal with it. The main issue is probably dealing with the complaint itself and the first step and that is meeting to discuss the complaint with the employee. So, I suppose whenever you receive the formal complaint, you would invite the employee to a meeting to discuss it and advise them they can be accompanied to that meeting because it's a formal meeting. It's a good idea to tell the employee the process will be treated confidentially. There won't be any problems or any release of information to anyone else at that point.
Obviously, that has to happen in terms of the investigation at a later stage. But you're taking your information from the person that's been in with the complaint and then you're really looking at any witnesses to the complaint as well that they're going to give you those names. You're going to go and investigate it with them as well. It will depend on the nature of the harassment. You may want to separate out the two individuals and you may say if there's an alleged harasser that they don't have any contact with the complainant until the investigation is completed. You may even think about suspension at that point, provided that it's warranted and it's necessary.
Scott: The difficulty here though, Seamus, is that each case has to be dealt with on its merits. It's all very well somebody making an allegation, but the organisation still has to function. You can't suspend everybody.
Seamus: No. I think probably for coming towards a decision to make a suspension, you're probably looking at the seriousness of the complaint. Is a severe disciplinary action going to be warranted if proven? Is there possibility of dismissal? If you're at a very high level in terms of that, it may be that suspension is warranted, but it will not be warranted in all cases and I would have thought in the majority of cases it won't be. But it's just some indication around that.
I think following the initial meeting with the complainant, the manager will then meet with the alleged harasser. You're going to have to outline the nature of the complaint made. That doesn't mean you're handing them a copy of a letter being provided, but you're maybe taking the apt points out as well because sometimes you're adding fuel to the fire here whenever you make full disclosure.
You're making sure that you're giving the harasser an opportunity, that they're clear what the allegations are against them and they've got an opportunity to answer the allegations. Again, are they giving you details of any witnesses? If they are, you'll need to go back and speak to any witnesses, making sure that it is properly investigated. Again, that person is entitled to—the alleged harasser--is entitled to be accompanied at those.
Then you're really into the proper investigation of the complaint. You want clear terms of reference in relation to the investigation and also to work out who in your organisation is going to deal with each step of the process here. I think a really sound point to make is to make sure you keep accurate and detailed records of any minutes you've had or any meetings you've had, whether that's in minute form or otherwise and what's happening all round in terms of meeting with the witnesses and also meeting with the alleged harasser and the complainant as well. I think at that point, you're really into gathering all your information together and reaching an outcome as to whether or not you are at a point where the investigation is going to give you an answer as to whether or not you feel as there's more to be warranted.
Scott: There's debate at the moment thanks to the wonderful Lady Hale about how reasonable an investigation has to be in terms of the Burchell test. Effectively, these still apply. It just says you've got to try to find out as much information as you can based on that information following a reasonable procedure, you may well take action. It's likely if it's bullying and harassment to be at the high end. Therefore, it could well lead to dismissal. That's all. You follow the usual one, two, three procedures that we all know about and don’t need to discuss here.
Seamus: That's it. There are two add-on points in relation to that. One is sometimes it might not be—it could be an allegation of bullying and harassment but it could be something that could be resolved between the parties and maybe you're looking at trying to deal with things informally in the first instance. It could be that the alleged harasser isn't aware even that what they're doing is considered bullying and harassment.
Then the other aspect is tying it all together, having a joined-up process and looking at if there is a disciplinary hearing, what the disciplinary outcome is going to be for the alleged harasser. Either way, if there is a disciplinary process or if there isn't, you're probably looking at some sort of mediation between the parties in order to resolve the situation.
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