The ideal workplace investigation is conducted confidentially. Complainants, respondents and witnesses are asked to not discuss their involvement in the investigation process or anything that is discussed with others at the workplace, with the exception of human resources representatives or a support person.
Participants are asked to observe confidentiality so that each person provides their own independent recall of events, and any information is not influenced by what others remember. Observing confidentiality also guards against collusion, speculation and office gossip.
Witnesses may be reluctant to participate in an investigation, and are sometimes given assurances by an employer before we begin an independent investigation that they may participate anonymously.
While at Worklogic we take every possible precaution as investigators to maintain confidentiality, we cannot conduct a procedurally fair investigation if participants wish to remain anonymous. Complainants must be identified so that respondents can fully understand and address the allegations brought against them. Nature justice and procedural fairness require that a person accused of inappropriate conduct be informed as specifically as possible:
- Who says the person acted inappropriately
- What conduct (words, actions, etc) was inappropriate
- When the alleged inappropriate conduct took place
- Why was the conduct inappropriate.
While most complainants accept the need to be identified in an investigation, witnesses often question why other participants need to know that they have been involved. Witnesses who have been suggested by a complainant may be reluctant to participate, particularly where the respondent is in a position of authority.
In spite of rules and legislation prohibiting vilification and victimisation, witnesses sometimes feel that employers cannot effectively protect them from retaliation. At the very least, knowing that someone has said something that conflicts with what someone else – whether the respondent or the complainant – has said can lead to hurt feelings or divisions within a team. It can require courage to call out inappropriate behaviour in the workplace.
So can an investigator ever allow witnesses to remain anonymous?
If the evidence a witness gives does not conflict with any other evidence, that evidence and the individual’s participation does not need to be disclosed. However, promising that a witness can remain anonymous is likely to lead to an uncomfortable outcome that either leaves a witness feeling that they have been pressured into revealing their participation or excluding the evidence of that witness.
Honesty about confidentiality (not anonymity) is the best policy.
We need to rely upon evidence to make a finding, and that evidence needs to be tested. Where evidence is given that contradicts what the respondent or complainant has said, they need to be given the opportunity to address that evidence before a finding is made. As with an allegation, it is nearly impossible for a person to fairly respond to information if they don’t know who provided it. Procedural fairness requires that a person be able to comment on adverse information. Without knowing who provided the information, a person cannot comment upon whether a witness may not have been present when events occurred, may have a reason for providing contradictory information, or if there are other factors influencing witness evidence.
It may be tempting to tell witnesses that they can remain anonymous to encourage them to participate. However, it is ultimately counterproductive, as findings cannot be made based on contradictory evidence that is not provided to the respondent because a reluctant witness does not want to be identified. Witnesses should be assured that investigations will be confidential, but that their participation is most likely to be known by other parties to the investigation.
As an organisation, the best practice is to encourage a bystander culture where employees at all levels are encouraged to call out unacceptable behaviour and leaders make it clear that inappropriate behaviour is not tolerated.
