confidentiality: a cautionary tale
As a core value of investigations, confidentiality is one of the most important aspects to manage when conducting a workplace investigation. Complete confidentiality cannot and should not be promised to the parties. Doing so can limit the effectiveness of the investigation and can also compromise the value of procedural fairness to the parties. For example, through the lens of procedural fairness, the respondent (the person accused of misconduct) has a right to know the identity of the complainant, the nature of the complaint, and the specific allegations against them so that they have a full and fair opportunity to respond to the allegations against them. The investigator needs to be able to strike a mindful balance between preserving confidentiality of the parties and completing an investigation that is thorough and fair to the parties.
If confidentiality is not preserved, the integrity of the investigation process can be compromised, trust and confidence in the process can be broken, reputations of the parties can be ruined and the work environment can become increasingly toxic.
There are, of course, limits to what information should be shared in an investigation. For example, it would be inappropriate for an investigator to share any medical information that is disclosed to the investigator by any of the parties in an investigation. If this information is deemed critical and relevant to the investigation process, the investigator has a duty to obtain written consent from the party to disclose this information.
It is critical that an investigator clearly outline expectations of confidentiality in writing to all parties in the process. Such expectations may include not discussing the fact that the investigation is taking place, their participation in the investigation, the specific allegations, the questions asked by the investigator, their answers and/or any evidence provided. As well, the investigator should clearly articulate the consequences for not adhering to the confidentiality expectations to the parties.
As a licensed, independent workplace investigator, part of my investigation process is to require all parties in the investigation to sign a written confidentiality agreement. The agreement clearly articulates the expectations of confidentiality and the consequences for breaching the terms of the confidentiality agreement.
confidentiality - a cautionary tale
Many moons ago, I conducted an investigation where I had no choice but to conduct the investigation interviews over the phone (both the respondent and the key witness refused to participate in video conference interviews and were located in different geographic locations across Canada). I made it very clear to the parties - both verbally and within the confidentiality agreement that they both signed - that their participation in the investigation, what we discussed, the questions I asked and the information they shared with me were not to be shared with anyone who might be called as a potential witness in the investigation process. I interviewed the respondent on one day and the very next day, when I was interviewing the key witness, their answers to my questions were exactly. the. same. (in many cases, the witness used the same verbatim turns of phrases as the respondent had used). As an investigator, major red flags were raised. I went back to the respondent and the witness individually and re-emphasized the expectations of confidentiality that they had agreed to and asked them if they had discussed the investigation process, or if either of them had breached the terms of the agreement. Both of them emphatically denied that they had breached the confidentiality or that they had colluded in any way. As an investigator, and in my mind, it did not seem plausible or probable that their testimonies could be virtually identical by some miracle or alignment of the stars. I advised the senior stakeholder of the organization of my concerns and with the help of the organization’s Head of IT, they were able to confirm that the respondent had audio-recorded our interview and sent a copy of the recording to the key witness using their company’s email system 😳
the outcome?
Both the respondent and the key witness were terminated for cause because they:
lied and trust was seen to be irreparably broken
acted in bad faith and their actions compromised the integrity of the investigation process
breached the terms and expectations of confidentiality that were made clear to them
So, yeah, confidentiality is a value that is critically important to manage through the workplace investigation process.
September 29, 2020
Saira Gangji is an independent licensed Workplace Investigator at hrology in Calgary, AB. She investigates allegations of discrimination and human rights, harassment, violence and misconduct in the workplace. For more information about hrology and our process, see the work with me page.