Privacy and confidentiality are critical elements to a workplace investigation. Without the protection of privacy, complainants may hesitate to come forward and participants may hold back on what they choose to disclose, which will impact the effectiveness of an investigation, or even frustrate its purpose altogether.
At the same time, for a workplace investigation to proceed in an equitable manner, privacy and confidentiality are not absolute.
Here lies the tension between due process and privacy/confidentiality, and workplace investigators must strike a delicate balance. This blog post will review three issues to consider in striving to achieve this balance.
Legislative Requirements
Depending on the nature of the allegations in the investigation, there may be legislative requirements which guide the privacy that must be maintained in that investigation.
For example, in Ontario in the case of an allegation of “workplace harassment,” section 32.06 of the Occupational Health and Safety Act applies. Pursuant to this provision, information obtained about an incident or complaint of workplace harassment must not be disclosed unless:
- the disclosure is necessary for the purposes of investigating the incident or complaint.
- the disclosure is necessary for the purposes of taking corrective action with respect to the incident or complaint. Or.
- the disclosure is otherwise required by law.
This is described as a “need to know” disclosure requirement.
In addition, and more generally, pursuant to section 5(2) of the Ontario Human Rights Code (the “Code”), an employee has a right to be free from harassment based on a protected ground[1]. Section 8 of the Code guarantees every person the right to enforce their rights under the Code without reprisal or threat of reprisal for doing so. It is crucial that workplace investigations are conducted in a manner that avoids perpetuating the risk of reprisal against complainants.
“Need to know” basis
The fact of a complaint and investigation should not become “public knowledge” within a workplace. The fact that a complaint has been made, that an investigation is taking place, and any other details gathered during the investigation, should not be disclosed to anyone unless that disclosure is necessary for the purpose of conducting the investigation. This is not only protected in section 32.06 of the Occupational Health and Safety Act for specific types of investigations, but also the usual and normal expectation in workplace investigations.
The complaint will, of course, need to be disclosed to the respondent. The respondent has a right to know the allegations made against them to be able to participate in the investigation and to prepare a full response to the complaint. Confidentiality and privacy considerations should not prevent a respondent from receiving the information they need to have a fair opportunity to respond to the allegations made against them.
The complaint may also need to be disclosed to other individuals whose participation in the investigation is required to obtain all relevant information, even if those individuals are only tangentially connected to the complaint. For example, it may be necessary to interview a fact-witness - i.e. a third party who is said to have witnessed an incident, for the investigator to obtain a “full picture” of the information relevant to the allegations in question. Accordingly, the fact of a complaint may need to be disclosed to that individual to facilitate their participation as a witness in the investigation.
Disclosure should not take an “all or nothing” approach. The information disclosed to each participant should be tailored based on what that specific participant “needs to know” to meet the purposes of the investigation. This applies to the type of information disclosed as well as the amount of detail shared.
This, of course, is a fact-specific assessment – there is no standard formula that applies to all cases. That said (generally speaking) the amount of information that needs to be disclosed to a respondent will vary significantly from the information that needs to be disclosed to a fact-witness. A respondent will usually need to know the identity of the complainant, particulars of the complaint, and a summary of the allegations along with, potentially, details from or copies of all or parts of relevant records. A fact-witness, on the other hand, may not need to know any information, not even a high-level summary of the allegations, to identify the incident or contextual practices that they are asked to recall and provide their recollection or knowledge about.
Binding Participants to Confidentiality
To protect the privacy of the information disclosed during the investigation, at the outset of discussions with any participant, we recommend that the investigator either advise participants of any obligations from legislation or policies that the complaint, the investigation, and all the information disclosed to them (including any questions they are asked) are confidential (with the exception of their legal advisors or as required by law) or ask that participants agree to confidentiality. The investigator should then consider whether any failure to agree to the confidentiality requirement should affect how much the participant is allowed to participate in the process or how much would be disclosed to the participant.
These confidentiality undertakings can assist to ensure that even the information disclosed to participants remains private within the bounds of the workplace investigation. Confidentiality obligations will usually extend beyond the conclusion of the investigation. Unless disclosure is permitted or required by law, participants are usually bound to keep the information confidential indefinitely, further safeguarding the privacy of those involved.
This further assists to strike the intricate balance between due process and privacy/confidentiality, ensuring that participants have the information they need to participate fully in the process, while limiting the extent and breadth of sharing of otherwise private information to protect the parties’ privacy.
If you have any questions regarding workplace investigations, or if you would like to engage us, please do not hesitate to reach out.
[1] Race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.
