Because of the obligation to give respondents fair process, HR must give them enough details to understand and address the complaint. This will usually include details that identify the complainant.
Good policies are the start to good investigations, Toronto employment law
yer Kelsey Orth said. Your organization should have a policy that explains the process for making and investigating a complaint and is clear that while the process will be confidential to the greatest extent possible, but the accused person will be given the information necessary to respond.
“No investigative process holds up if you don’t give that person an opportunity to respond,” Orth said. “It does add a layer of difficulty and people may be less inclined to come forward, but from the respondent’s side, if you can’t give them all the information they need to respond it’s not a fair process.”
Orth called it a “tough balancing act” and noted that the full complaint never needed to be shared with the respondent. However, employers are obliged to give them enough information to respond. If they don’t get that information and later dispute the result in court then your organization’s decision may not hold up.
While he was sympathetic to employees with concerns about safety and retaliation, it is difficult to follow through on an investigation if they refuse to put their name on their complaint.
“From the fair process standpoint, unless there was a direct, imminent threat related to that person’s identity you can’t guarantee that for very long,” Orth told HRM. “The responsibility of the employer is to provide safe workplace, but if someone is bringing forward a complaint and there’s a safety concern around that then unfortunately anonymity is not a staple of that.”
In the situation where HR receives a truly anonymous complaint, such as a note or email, he suggested trying to find more information but said without details an investigation was impossible. By seeking more information, if the individual chooses not to come forward with more information you have still covered the HR obligation in terms of investigating.
“HR is not required to pursue every wild allegation that’s out there,” Orth said. “If you’re getting messages like that your obligation is to inquire, try to get enough particulars to investigate and if you don’t get those details there’s no way to progress.”
When a complainant is uncomfortable reporting a problem, they may want to remain anonymous, but one legal expert says that’s not something that HR can promise.