Insights | November 5, 2021

Harassment in the workplace – what actions to take and when to bring an external investigator in to help

Due to an increase in awareness of bullying in the workplace, work-related disagreements have become widespread. As a result, more and more workplaces are facing conflicts in the working community requiring in-depth investigations. Roschier's employment team has extensive experience of conducting complex harassment investigations and advising employers on all work safety related matters.

Behavior that formerly may have been commonplace or silently accepted is nowadays more often being addressed as potential harassment or inappropriate behavior. Sometimes, the conflicts are so sensitive or extensive that it is not possible to resolve them without outside help. Using an external expert for a harassment investigation can often be a lifeline for the employer in situations where the employer lacks sufficient resources to investigate or an impartial investigation cannot be achieved within the organization itself.

In the Finnish Occupational Safety and Health Act, the term harassment is used for bullying and inappropriate behavior in the workplace. However, not all inappropriate behavior or harassment amounts to harassment within the meaning of the Occupational Safety and Health Act. Understandably, this raises a lot of questions and ambiguities in the workplace.

Harassment is usually systematic and often long-lasting negative activity or behavior that can manifest itself in many different forms and target a specific person. Harassment can comprise, for example, passive aggressive behavior, isolating a person from the work community, or constant, unfounded criticism of an employee’s work. As a consequence, employers must constantly monitor the working environment for possible inappropriate conduct.

When dealing with conflicts, it is also important to keep in mind that an employer’s reasonable and justified measures do not constitute harassment. Normal managerial work does not amount to bullying or harassment, even though receiving negative feedback often feels distressing to the employee.

Harassment must be addressed immediately

Upon receiving information about potential harassment, the employer has an obligation to address it immediately, in practice within about two weeks. Thoroughly investigating a workplace conflict is one of the occupational safety obligations incumbent on all employers, the violation of which may, in the worst case, result in criminal sanctions being imposed on the employer’s representative. Failure to intervene may also cause the company to suffer financial or reputational harm. Likewise, the productivity of the personnel may suffer and deep wounds may be inflicted on the work community.

Fortunately, these days companies are able to react to cases better and faster in these situations since they have acquired training on how to deal with harassment and ensured efficient processes are in place. However, if the employer does not have the necessary information, skills, and ready-made processes to investigate cases of harassment, it is a good idea to consider at an early stage whether it would be worthwhile bringing in an external expert.

An external investigator to help in difficult situations

Even if the employer possesses the appropriate expertise and processes for resolving conflicts, there may be situations where the use of an external expert is the best option for all parties. This may be the case when, for example, the suspect in the harassment investigation is a member of the management of the company, or when the case as a whole is challenging and time-consuming. Typically, an external investigator is needed in situations involving difficult, prolonged, and complex conflicts in which the supervisor or a member of the company’s management may be involved, often jeopardizing the impartial handling of the case by the employer itself.

Since cases of harassment are often of a delicate and sensitive nature, the trustworthiness and professionalism of the investigator are key factors when choosing the expert. In demanding situations, it is often advisable for the external investigator to be an expert in employment law, often a lawyer, who is able to navigate and advise on the rules applicable to the investigation process.

Investigate immediately, hear everyone, and take action

All parties must be heard in the investigation. The investigator, be it the employer’s representative or an external expert, must be transparent and impartial. The person who has been accused of harassment must be given detailed information about the claims made against them so that they have an opportunity to adequately defend themselves. The parties are also entitled to avail themselves of counsel or other individual(s) to assist them if they wish to do so.

Once the matter has been adequately investigated, the employer must decide whether or not harassment has taken place. The employer must also take adequate measures. Once a decision has been made, the employer must monitor the situation in the workplace and ensure that the working community recovers from the conflict. The investigation process itself can be burdensome not only for the parties but also for the rest of the work community.

How does an expert investigator work?

• The investigator must assess the nature of the situation and provide assistance to all parties involved in the investigation and keep them informed throughout the process. The investigation must be adapted to the client’s needs and communication between all parties involved must be clear and effective.
• The parties and any other persons aware of the situation must be interviewed. It is advisable to conduct the hearings face-to-face. Interviews can also be arranged remotely if a face-to-face meeting is not possible. However, it is advisable to interview the alleged victim of the harassment and alleged harasser face-to-face, at the very least – gestures and facial expressions speak volumes. Interviews and evidence must be thoroughly analyzed.
• Careful and accurate documentation is critical for maintaining a responsible process. In the interviews, precise notes should be kept, on the basis of which the memoranda for discussions are made. The facts must be verified and documented.
• At the end of the investigation process, the investigator compiles a summary of the situation and provides recommendations, on the basis of which the employer decides the measures to be taken. The investigator’s recommendations may also include guidelines related to future risk management and the building of a healthy working environment.
• It cannot be overemphasized how important it is for the investigator to be objective, as this ensures protection for all parties.

This article, written by Associate Oskari Lindholm together with Senior Associate Mari Mohsen, was originally published as a shorter Finnish version in Evento magazine on 14 October 2021.