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Confidentiality key to integrity of investigations

By AdvocateDaily.com Staff

Employers can minimize the risk of damage during internal and third-party investigations by emphasizing the importance of confidentiality early and often in the process, Toronto workplace violence and elder abuse specialist Denise Koster tells AdvocateDaily.com.

Koster, principal of Koster Consulting Associates, says the verbal warning many organizations offer to witnesses about the confidentiality of proceedings just won’t cut it.

“If there are no parameters, it doesn’t mean much,” says Koster, who advises companies to employ a more formal approach from the outset.

“It’s extremely important for organizations to have policies and procedures regarding the conduct of investigations, and they need to talk about the importance of confidentiality to protect the integrity of the probe,” she says. “Then, as part of the formal process, there needs to be a specific confidentiality statement that participants are asked to sign."

Koster says the statement should also make witnesses, complainants and respondents aware that any breach of confidentiality could result in disciplinary action, up to and including dismissal.

It's vital that complainants are presented with the statement as soon as they make their allegations, and witnesses should be asked to sign at the beginning of the first interview, she says. In addition, the statement should specify that the confidentiality takes effect immediately, while allowing for certain exceptions, such as for communication with police, union representatives, legal counsel or personal physicians, Koster adds.

Without a significant level of formality, Koster says people are more likely to take a loose-lipped approach to the investigation, safe in the knowledge that they can plead ignorance later.

“After a verbal caution, people can claim they weren’t sure what was meant or whether it applied to them,” she says.

In her years conducting investigations Koster has encountered numerous situations that she says should act as cautionary tales for organizations that fail to enforce strict secrecy over proceedings.

“Breaches can cause damage not only to the complainant and individual who is the subject of the investigation but also to the organization itself,” she says. “Unfortunately, I have dealt with cases where accusations were made maliciously, and if there is no strong culture of confidentiality, then information spreads internally as well as externally.

“The point is to protect the complainant, respondent and witnesses. You don’t want anyone to be able to speak out before a conclusion has been reached in the investigation,” Koster adds.

Technological developments in recent years have only enhanced the dangers for all parties, she says.

“I’ve seen so many cases where people were cautioned about confidentiality, only to put something straight onto Facebook or some other platform. Social media allows breaches to happen much sooner and have much more devastating effects,” Koster says. “Suddenly gossip between a couple of people can spread to thousands at the click of a button.”

Things get tricky when investigators need to hear from witnesses external to the workplace, she adds.

“You have to be very cautious about whether you speak to them because if you do, there is no way to enforce the confidentiality requirement,” Koster explains. “I take it on a case-by-case basis when deciding if I need to hear from someone from outside the workplace. I speak to my clients about the pros and cons of the situation, but the final decision is always up to them because it’s their reputation on the line if the person breaches the confidentiality.”

In addition to emphasizing the importance of confidentiality, Koster says statements signed by all parties should ask signatories to attest to the truth of their statements, as well as confirm that no retaliation will take place in the workplace as a result of what is told to investigators. And the same request and expectation should be presented to everyone involved, regardless of their rank in the company.

“If a senior leader is accused of misconduct or alleging it, they should sign the exact same statement as a front-line worker,” she says. “If you can build confidentiality right into your process, then it becomes common practice and will validate its importance to everyone involved.”

In some cases, she says people will feel uncomfortable about signing the document or may be advised not to by a union representative or legal counsel. However, Koster says refusing to sign does not negate the requirement for confidentiality or the possibility of sanctions for a breach.

“Putting the signature to the statement is really just a formality,” she says. “Whether it is signed or not, I recommend that organizations keep one copy for themselves, give one to the witness or complainant to take with them, and then have another delivered to them by regular or recorded mail, so that there is clarity of expectations and no way for them to say that they weren’t aware of the parameters if there is a breach in confidentiality.”

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