In the previous article of this series, we considered an employer’s obligation to an employee who makes an allegation of workplace bullying. Often employers are good at supporting the complainant, yet they forget that there is someone else who is being impacted by the complaint and that is the person who has been accused of bullying.
People make bullying complaints for different reasons. Many are genuine and justified. However, we have seen many complaints made with ulterior motives (whether that is to detract from an employee’s own lack of performance or due to relationship issues).
An employer should always remember that they have as many obligations to the alleged bully to follow due process when investigating complaints, and to provide wellbeing support as they do to the complainant.
In this article, we break down an employer’s obligations to the alleged bully – which are often forgotten.
Before the investigation
There are a number of steps employers should take before deciding to investigate a bullying complaint. These steps demonstrate an employer has done their due diligence, minimising the chance of an argument that the employer has:
- pre-determined the outcome of the complaint;
- taken action against the alleged bully (the respondent) without getting their side of the story; and/or
- embarked on an inappropriate process (which could be contrary to workplace policy or law).
During the investigation
Employers may decide to carry out an internal or an independent investigation to determine the facts of the complaint. The ins and out of these processes are a matter for another article. Whichever process the employer decides to follow, they have the following obligations to the respondent:
Once an appropriate process has been determined, don’t delay in informing the respondent.
Sitting on a bullying complaint for too long will likely disadvantage both the complainant and the respondent. In line with their duty of good faith, employers should be raising any concerns they have about an employee’s behaviour as soon as possible.
The information you provide to the respondent is important – and they may ask for more.
The respondent must be provided with a copy of the complaint in full, including any supporting documentation. In fact, the respondent is entitled to receive any personal information the employer holds relating to them. They may make a request under the Privacy Act 2020 for this information at any time.
Employers often overlook this fundamental step. Sometimes, it’s because complainants have asked to remain anonymous. Immediately seek legal advice if this is the case, as it is highly risky to conduct an investigation based on an anonymised complaint.
Choose the investigator wisely.
Whether conducting an internal or independent investigation, ensure the investigator is impartial and has the appropriate skills to undertake the investigation. This may be difficult for smaller organisations or teams, who can opt for an external party to conduct the investigation. Employers should also be careful around how much information they share with the investigator ahead of the investigation process. We recommend choosing and engaging investigators with the help of your legal team.
Keep the respondent informed of all procedural steps in the investigation – just as you would the complainant and any witnesses.
This includes advising the respondent how the investigation will be carried out, by whom, and providing them an opportunity to comment on any information provided by the complainant and witnesses. The respondent must also be advised they are entitled to bring a support person or representative to any investigation meeting.
Offer wellbeing support.
An offer of wellbeing support should be extended to those who are the subject of bullying allegations, throughout the investigation and beyond. Given the nature and seriousness of bullying allegations, support should be sought through the organisation’s Employee Assistance Programme (EAP) or a private psychologist or coach.
After the investigation – should we take disciplinary action?
Whether disciplinary action is appropriate following an investigation is highly dependent on the facts of each case. If an employer decides a disciplinary process is needed, employers have an obligation to follow a fair and proper process and reach a justified outcome.
Even if an employer determines a disciplinary process is not needed, relationships may still be frayed after the investigation process. Employers could take measures to repair these relationships, that are not disciplinary. This should be done in consultation with both complainant and respondent.
Get in touch with the team at Black Door Law for more information on the rights and obligations of respondents in workplace bullying matters.
Disclaimer: This information is intended as general legal information and does not constitute legal advice. If you have a specific issue and wish to discuss it, get in contact with the Black Door Law team.
This article is part of a 6 part series on Workplace Bullying, our other articles in the series can be found in the following links: