Nadia Zaman here with another employment law video update.
Today I want to talk about workplace investigations. Investigations have taken on tremendous importance in the world of HR, and failing to investigate, or failing to investigate properly, can result in significant liability.
Now, when are such investigations carried out? The two most common scenarios are one, when the employer suspects the employee has engaged in misconduct, particularly prior to a dismissal for cause, and two, when an employee complains of harassment. We often tell our employer clients, you cannot impose discipline, especially dismissal, until you investigate. If allegations have been raised against an employee, you first need to know the facts. You cannot prosecute them or assume the employee is guilty before carrying out the investigation, and yes, that means you should not suspend the alleged harasser in the interim. Having said that, and as we often tell our employer clients, you can place the employee or employees in question on an administrative leave of absence, this is especially so in situations where an employee is accused of harassment, so you need to separate the two employees in question.
To be clear, the administrative leave is not meant to be disciplinary. Our employer clients often ask, do I have to pay them during this time? Well in most cases the leave is with pay but there are some circumstances where it may be appropriate to place them on an unpaid administrative leave.
What’s the purpose of the investigation? You’re essentially trying to determine whether they did anything wrong and if so, what the consequences should be. So you can’t penalize them while you’re investigating. Remember, innocent until proven guilty.
Why are we even discussing this? Because if something does go wrong, if you don’t carry out the investigation properly, if you suspend someone when you shouldn’t, then you could be facing a constructive dismissal claim and be exposed to substantial liability. Constructive dismissal is a substantial change to a fundamental term of the employment agreement and the most fundamental term of that agreement is that the individual will work and the employer will pay them. If you refuse to allow them to work, and/or refuse to pay them, you’re changing a fundamental term of the agreement. That would be a constructive dismissal unless you can show that it was justified.
In the context of investigations, you will have to show that one, you were acting reasonably and two, whatever decision you made was justified. At the end of the day, it is critical that you carry out investigations properly. They must be timely, impartial, and fair. Here are some best practices for employers. Policies and processes should be written, communicated, enforced and updated as needed. You should retain records of harassment and discrimination complaints, investigation processes and reports. You should act in a timely manner. You should maintain confidentiality, train your employees, investigate complaints properly before taking disciplinary action, communicate findings of the investigation with the parties and outline what steps will be taken to resolve the matter, and last but not the least, ensure a safe work environment free from harassment, discrimination and reprisals.
If you’re an employer and you suspect misconduct, you need to investigate, you should not make a rash decision that ends up costing more in the long run. And when you carry out an investigation, see how the employee responds. Sometimes the employee’s misconduct prior to the investigation may not justify just cause for dismissal, but their dishonesty during the investigation might lead to a breakdown in the employment relationship, supporting just cause dismissal. It’s critical that you carry out the investigation properly, otherwise you could be exposed to substantial liability.
With respect to employees, the key takeaway is that if you have been suspended, with or without pay, or dismissed, or let’s say you’re going through a workplace investigation, whether as the alleged harasser, the complainant, or a witness, don’t simply accept the employer’s words, you need to understand your rights.
Both employers and employees need to understand their rights and their obligations in the workplace, and that’s where we come in. We understand your concerns and goals, advise you on your rights and obligations, and ensure you’re getting what you’re entitled to, and not inadvertently exposing yourselves to liability.
As we usually say, if you think you might need an employment lawyer, you probably do. So feel free to reach out to us and we would be happy to help you.