Every employer who receives a workplace harassment complaint will ask whether they should separate the parties involved and, if so, whether one of them should be sent home with pay during the investigation. Although the answer to this question may depend on several factors, there is one that should stand out.
Working free from harassment
While legislative and regulatory provisions aimed at protecting employees from harassment vary by jurisdiction, their primary goal is essentially the same: to impose an obligation on the employer to intervene and stop the harassment if it is indeed occurring. When an employer receives a workplace harassment complaint, they receive allegations related to behaviours or comments that may constitute harassment, but this represents only one version of events. To be certain, an investigation must be conducted.
Many jurisdictions have included harassment-related provisions in their occupational health and safety laws or regulations. Harassment, like any other workplace hazard, falls under employers’ general obligation to protect their employees’ health and safety. Consequently, in matters of harassment, employers in many jurisdictions have the obligation to ensure that employees can work without being harassed.
For example, New Brunswick’s General Regulation – Occupational Health and Safety Act requires employers to create policies that include “a statement that every employee is entitled to work free of harassment.” In this context, a workplace harassment investigation is how employers meet this obligation, ensuring employees’ right to work without harassment is upheld.
In Quebec, similar provisions are found in its Act Respecting Labour Standards rather than in its Act Respecting Occupational Health and Safety or regulations: “Every employee has a right to a work environment free from psychological harassment.” Therefore, the investigation will also be how the employer fulfills their obligation to protect the employee’s right to a harassment-free workplace.
In Ontario, provisions are found in the Occupational Health and Safety Act, which provides that “to protect a worker from workplace harassment, an employer shall ensure that: a) an investigation is conducted into incidents and complaints of workplace harassment that is appropriate in the circumstances.” Although conceptually different from the provisions in the Quebec and New Brunswick statutes, this provision imposes a similar obligation on employers to investigate harassment incidents and complaints to protect employees.
Preventive Measures
Given the role employers must play in protecting their employees from harassment, they will need to assess the potential risk posed by the respondent and evaluate the possibility of separating the parties involved. Although the separation of parties, which is a discretionary measure, can take various forms, it is fairly common for the respondent to be sent home with pay during the investigation. The primary reason for removing the respondent from the workplace is that, according to the allegations, they pose a potential danger, and preventive measures are needed while the employer clarifies the situation.
The question is, therefore, about managing the risk that the respondent may pose in the workplace. Consequently, the most crucial factor to consider is the nature of the allegations. Allegations can vary on a spectrum from mild to severe. For example, they can range from unprofessional email exchanges to behaviours or comments of a sexual nature. It goes without saying that, except in rare cases, it is not necessary to send the respondent home with pay because of allegations of unprofessionalism in email exchanges. On the other hand, the employer may not want to take any chances when the allegations involve sexual behaviours. The nature of the allegations will directly impact how the respondent’s potential danger is assessed and whether the parties should be separated during the investigation.
Remember, too, that the separation of parties does not automatically mean that the respondent is sent home with pay during the investigation. Depending on the nature of the allegations, the employer may keep the respondent at work and modify the reporting structure, if there was one between the parties. As well, if feasible, the two parties may be physically separated in the workplace. The employer may also consider the company’s operational needs when deciding whether to separate the parties and in determining the form it will take, provided that preventive measures are put in place to protect the complainant.
It is also possible that the complainant may go on sick leave shortly after filing the complaint or that the complaint is filed while on sick leave. In this case, there is no need to send the respondent home since the parties are already separated. However, the situation will need to be reassessed if the complainant returns to work before the end of the investigation.
It’s important, too, to evaluate the potential danger the respondent poses to other employees. The complainant may not be the only person targeted by the behaviors or comments under investigation. If this information is not known at the time of the decision, it is still necessary to generally assess the potential danger posed by the respondent if they remain in the workplace.
If the employer allows the respondent to remain at work, they must instruct them to keep the investigation confidential and to avoid communicating with the complainant, except for necessary professional interactions. Any communication with the complainant about the investigation could be perceived as retaliation, which is typically explicitly prohibited in respectful workplace policies.
Overall, the separation of parties is a preventive and discretionary measure taken by the employer as part of their obligation to protect employees from harassment. It can take various forms, and the form it takes will largely depend on the nature of the allegations.
The Effect on the Implicated Person
The decision to separate the parties, especially sending the respondent home with pay pending the investigation, should not be taken lightly. Remember that it will likely affect their reputation and, in some cases, even their health. Although employees involved in an investigation must maintain confidentiality, it can be very challenging to keep the matter quiet, especially when there is a change in hierarchy or a prolonged absence.
Furthermore, if the employer routinely sends respondents home during the investigation, some employees might use the respectful workplace policy as a weapon. Under such a practice, an employee could simply file a harassment complaint to temporarily remove a person they dislike.
Lastly, it is essential to obtain precise and detailed allegations to assess the nature of the claims properly. This will allow the employer to accurately evaluate the potential danger posed by the respondent and make an informed decision regarding the separation of the parties and, if applicable, the form it should take.
Translated from the original French version.
Contact us at: info@montanahr.com
© Montana Consulting Group
Please note the information provided in this blog post is for general informational purposes only and every situation should be evaluated on a case-by-case basis.