In Ontario, employers are required to conduct appropriate workplace investigations into incidents and/or allegations of workplace harassment. However, these investigations must also protect confidentiality and consider the privacy of employees involved. This blog post will review the intersection of workplace investigations and confidentiality.
To learn more about workplace harassment and understand your rights while participating in a workplace investigation, read our previous blog here.
Confidentiality and Privacy Obligations During Workplace Investigations
Ontario employers have a legal obligation to conduct appropriate investigations into incidents or allegations of workplace harassment. However, they must simultaneously exercise diligence and caution in relation to an employee’s privacy and confidentiality of the investigation.
Balancing confidentiality and procedural fairness during a workplace investigation can be challenging and requires an ongoing evaluation of ‘need to know’ information, clear communication, and careful interviewing methods.
Under the Occupational Health and Safety Act, employers are required to protect confidentiality by ensuring that information about an incident or complaint of workplace harassment is not disclosed unless the disclosure is necessary for the investigation, to protect a worker, for taking corrective action, or is otherwise required by law.
Furthermore, the Ontario Human Rights Code provides employees with the right to be free from discrimination in the workplace. In the context of a confidentiality during workplace investigations, employers must be diligent to ensure that there are valid and justifiable reasons for requesting certain personal information (i.e., information that identifies the employee’s sex as different from their gender identity).
Finally, case law in Ontario encourages employers to consider the following questions when determining whether to proceed with something that could also intrude upon an employee’s privacy:
- Is there a legitimate business objective (or legal requirement) supporting the collection of personal or confidential information?
- If so, what is the least intrusive way that the employer can satisfy that objective or legal requirement?
- Is it possible to notify employees (and obtain consent) before the potential privacy breach?
Employers are additionally encouraged to advise employees of the expectation of privacy that they can reasonably have during a workplace investigation and obtain consent when an intrusion upon employee privacy is expected or necessary.
Seeking External Investigators to Conduct Workplace Investigations
In some instances, companies may consider retaining an external investigator. External investigators can be beneficial in relation to confidentiality for two reasons. First, they are independent from the workplace and therefore will not go back into the workplace with the information gathered during the investigation. Secondly, they typically have experience in best practices for maintaining the necessary confidentiality during a workplace investigation.
Best Practices for Maintaining Confidentiality during an Investigation
It is important to acknowledge an employee’s concerns about confidentiality during a workplace investigation, especially since workplace harassment can be a sensitive subject.
The following is some key considerations for addressing confidentiality during a workplace investigation:
- Setting Expectations
It is helpful for all participants to explain the investigation process as well as the steps that will be taken to maintain confidentiality. Investigators should also ensure that they inform participants that complete confidentiality cannot be guaranteed, and that information will be shared on a need-to-know basis.
- Need-to-Know Basis
It’s important to ensure that the information gathered is directly related to the investigation. Further, investigators must ensure that identifying information is not disclosed unless necessary to conduct the investigation or as required by law. For example, a Respondent will likely need to know the identity of the Complainant to fairly respond to the allegations. However, a witness may not need to know the identity of the Complainant to provide the details about the circumstances they witnessed.
- Confidentiality Statements
Investigators may consider asking participants to sign a confidentiality statement confirming that they will not disclose any details of the investigation and that they understand they may be subject to discipline if they breach confidentiality.
- Security of Documentation and Notes
Investigators are encouraged to securely store any documentation that has been collected during the investigation.
Further, investigators are discouraged from emailing interview notes to participants or providing them with their own copies because it can lead to difficulties controlling the confidentiality of those interview notes.
- Interview Location
Investigators may also want to consider the location and time of investigation interviews, taking into consideration the need for confidentiality. Investigators may choose to conduct interviews outside of main work hours or even offsite to avoid an interviewee feeling concerned about being overheard. A private location is more conducive to encouraging open and candid discussion.
By considering these essential factors, employers can foster an environment of trust, respect, and fairness during workplace investigations.
Maintaining confidentiality during workplace investigations is legally required and fosters a more effective investigation. Employers should ensure they comply with all relevant legislation and implement policies and procedures in place to address confidentiality during investigations.
Employers may also consider retaining external investigators as a method to ensure necessary confidentiality and minimize the negative impact of investigations on workplace trust and morale.
If you are an individual or an employer seeking advice during a workplace investigation or in conducting a workplace investigation, we encourage you to reach out to employment lawyers, Sultan Lawyers, for a free call back or flat rate consultation. If you are an employer, Sultan Lawyers provides comprehensive workplace investigation support to employers. We recommend an introductory call which can be scheduled to discuss the related details and our services. Please contact Sultan Lawyers, at 416-214-5111 or here.
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