Investigating Complaints of Bullying and Harassment

Helge Hoel and Stale Valvatne Einarsen

Introduction 541

Principles Governing the Investigation Process 544

Informed by Local Policy 544

Due Process and Natural Justice 546

Subjective Versus Objective 546

Confidentiality Versus Anonymity 546

Vexatious, Malicious and False Complaints 547

Based in Law and Statutory Requirement 548

Supported by Collective Agreements 548

Responsibilities 549

The Investigation Process 550

• 1) Preparation 551
• 2) Gathering of Evidence 552
• 3) Reaching a Conclusion 555
• 4) Writing a Report 556

Barriers to a Fair Hearing 557

Bibliography 559

Introduction

Organizations, including international bodies such as the International Labour Organization (ILO), are increasingly acknowledging the need to have in place proper policies and procedures to deal with cases of bullying and harassment, should they arise (see also Rayner and Lewis, this volume; ILO convention #190, 2019). Reflecting such a need and to ensure an ‘equal playing field’, the social partners in Europe, represented by various employer associations (e.g., Business Europe) and the European Trade Union Confederation (ETUC) signed a framework agreement in 2007 on the prevention of violence and harassment. The agreement ensures the right of employees to file complaints against alleged perpetrators with the aim of having their case heard by means of an impartial investigation and, given the outcome, the appropriate actions taken (European Social Dialogue, 2007).

In diverse workplaces, (see Lewis, Glambek and Hoel, this volume'), outlets or institutional mechanisms for dealing promptly and fairly with complaints from employees are essential. Hence, whilst diversity represents potential for organizational opportunities and strength, it also gives rise to situations where misunderstandings, disagreements and resentment may be rife (e.g., Horw'itx and Horwitz, 2007). Whilst such situations can be controlled and minimized if properly managed, all organizations should be prepared for the need to investigate allegations of behavioural misconduct. The presence of well planned procedures for investigations and their proper implementation provide the organization with an opportunity to bring the matter to a conclusion. Thus, through the application of a predictable and fair process, arriving at an informed and balanced decision, and taking appropriate action, a safe working environment for those involved can be re-established. Where appropriately applied such formal procedures provide security for the individual and send a strong signal to employees that these issues are taken seriously and not tolerated by the organization. By contrast, where such response-mechanisms are not in place, cases of this nature often remain unresolved for a long time, sometimes even for years, causing frustration and resentment to many or even all of those involved (Einarsen. Hoel, Zapf and Cooper, this volume). In addition to the negative organizational effects such ongoing cases or scenarios are likely to generate, which also increasingly show up on the organization’s balance-sheet (see Hoel et al., this volume), organizations may face the prospect of litigation. In this respect it is important to point out that whilst organizations vary with respect to the risk of bullying, no organization can be considered bully-proof (Rayner et al., 2002). Thus, the need to have in place policies and procedures on bullying applies to all organizations. The case for having a complaint of bullying or harassment heard and impartially investigated can equally be made on the grounds of justice and fairness, as reflected in the growing attention being paid to issues associated with respect and dignity of the individual in terms of their work-experience (CIPD, 2015).

Where proper procedures exist and these are applied correctly in terms of a fair investigation process, the conclusions reached and the appropriate sanctions towards the perpetrators taken, incidents brought to the attention of the organization are likely to be dealt with in a better way (Einarsen et al., 2017) and their presence may have a positive impact on behaviour within the organization (Hulin et al., 1996). Although it is vital that organizations put in place processes and mechanism to prevent bullying and harassment in the first place, organizations must equally be ready to respond to those cases which slip through the safety-net and where a formal investigation is warranted. Having procedures in place for such situations also ensures predictability for everyone involved and their perceptions of procedural justice, a key element in perceptions of fairness. In addition, a written procedure which allocates clear roles and responsibilities also acts as a guarantee of a planned and systematic process in which the impact of potentially interfering factors such as organizational politics (Salin. 2008) and heightened emotions can be reduced to a minimum.

In the following section, we describe how to conduct a fair and correct internal investigation in response to complaints about bullying and harassment at work. Although the first edition of this book included a chapter on investigation, this focused on investigations carried out by external investigators (Merchant and Hoel, 2003). In principle, every investigation into complaints of bullying instigated by the employer is an internal investigation (as opposed to any such investigation conducted by national or local bodies or other official inspectorates), though the employer may, of course, use both internal staff and external hired consultants. In cases where the complaint involves very senior members of staff, it may be advisable to employ external expertise, not least to ensure that the investigation is taken seriously by those involved and that the result will be respected.

Initially the chapter explains the basic principles that must govern the investigative process. In this we stress the importance of anchoring the investigation process within the organization’s bullying policy, general principles of fairness and due process/natural justice, key principles for workplace ethics, as well as basic national legal frameworks and statutory regulations (see also Hoel and Einarsen, 2010a; Hoel and Einarsen, 2010b). This is followed by a systematic exploration of the investigation process and its various stages. We close by discussing some of the obstacles often encountered in providing a fair hearing in such cases.

Principles Governing the Investigation Process

Predictability of process and how it is progressed and concluded is a key issue for trust in the process to be established. This can be best achieved by embedding the investigation process firmly in existing organizational policies and procedures. This section examines some core principles which need to be observed for the investigation process to be successful and in line with the aforementioned general principles of a fair and just process (Hoel and Einarsen, 2010b).

Informed by Local Policy

It is left to the employer to ensure that any complaints of bullying and harassment are dealt with in a fair as well as ethically and legally correct manner, ensuring the rights of both targets and alleged perpetrators (Einarsen and Hoel, 2008). To avoid having to respond to an aggravated situation unprepared or in haste, when emotions are running high, it is essential to have thought through the process of how a complaint should be handled independently of, or divorced from, any ongoing bullying scenario. Although such local policies and other organizational anti-bullying measures are often introduced in direct response to awareness of local problems (Salin, 2009), we would suggest that policies and procedures, to avoid suspicion and defensiveness, should be generated, in ‘peace-time’ and not in connection with any particular dispute.

The case for policy is made elsewhere (Rayner and Lewis, this volume; Einarsen et al., 2017). In terms of investigation of complaints of bullying, the policy has specific functions and fulfils certain needs. For the individual, it should provide the opportunity to have one’s case heard and thus offers the prospect of closure (CIPD. 2015) and personal vindication or redress (Meglich-Sespico et al., 2007). Furthermore, the presence of a policy and accompanying procedures for dealing with formal complaints represents predictability and security for the individual in terms of how their case is handled as well as the implications for any perpetrators found guilty of an offence. In this respect the policy can be seen to represent an expression of the balance between the employers’ duty of care to their employees, on the one hand, and the ‘managerial prerogative’, or managers’ right to manage on the other. For the organization, it is a way of resolving or bringing an ongoing case to conclusion, demonstrate desired values and to re-establish trust. By following the organization’s formal system by way of policies and procedures in addressing specific cases, the employer also highlights and strengthens any informal aspects of its ethical infrastructure

(see Einarsen etal., 2019). e.g., building and reinforcing a climate of trust in the organization’s ability to handle conflicts (Einarsen etal., 2018). Not least, this also reduces the chance of litigation.

It is suggested that effective policies on bullying and harassment should emphasize the following principles (e.g., Einarsen and Hoel, 2008, p. 161; Einarsen et al., 2016):

• • The right of every employee to work in an environment free of harassment, bullying and intimidation
• • The right of all employees to file a complaint, with the employer as the main organizational stakeholder responsible for securing a safe working environment for everyone.
• • Complaints will be investigated without undue delay following basic principles of what constitutes a fair hearing.
• • Non-tolerance of bullying and harassment, emphasising the seriousness with which any breach of the policy will be considered, highlighting that disciplinary action may be taken depending upon the severity of the offence.
• • The demand for compliance applies to all employees, workers and managers, as well as any individuals subcontracted or seconded to work for the organization.
• • Non-tolerance of any attempts at recriminations against or further victimization of anyone using the policy to complain, including non-tolerance of malicious complaints.

In addition to highlighting these principles, the policy should also contain the following elements:

• • Reference to national legal frameworks and to any relevant regulations
• • Standards for behaviour or conduct (against which the investigators judge the complaint and the evidence in its support). As many people will not label their experience as bullying or harassment, it could be even more appropriate to include a range of examples of unacceptable behaviour rather than merely a definition
• • Designated, reasonable time-frames for the various stages of the complaint process
• • A description of the complaints procedures and the nature of the investigative process
• • Systems for monitoring, recording and internally reporting trends and experiences relating to cases handled over a specific period of time

Due Process and Natural Justice

To treat everyone involved fairly and in order to arrive at a just conclusion which is also perceived as such by those directly involved and the wider organizational community, certain principles need to be taken onboard. Of particular relevance here is the principle of ‘natural justice’, or what is also referred to as ‘due process’, ‘typically construed as the right to know the charges and respond to evidence against oneself (HSE, 2017). This means that someone accused of bullying should know what they are being accused of and the exact nature of the complaint. Furthermore, alleged perpetrators must be given the opportunity to defend themselves against the complaint by being given access to any evidence relevant to the outcome of the case as well as having the opportunity to call witnesses and present other evidence which may support their side of the case. Moreover, in order for fairness and justice to prevail, the parties must be treated equally throughout the process. This implies that no-one should be judged before the investigation is concluded which is essential in order to preserve workplace fairness. This also suggests that investigators must refrain from making moral judgments, or obtaining character statements, and that any conclusion must be entirely based on facts of the case and not on sympathies or personal feelings (North Western Local Authorities’ Employer' Organization, 2005).

Subjective Versus Objective

Bullying and harassment as psychological phenomena are of course subjective experiences, to some extent being ‘in the eyes of the beholder". By contrast, the aim of an investigative process is to look at bullying from an objective perspective to see if experiences can be verified or confirmed by other third parties or by other objective evidence. Although individuals may have different thresholds with respect to their level of tolerance and, therefore, assess similar experiences differently, organizations need clear criteria for what is tolerated and what is not, in most cases building on the legal principle of a “reasonable person”. Moreover, in order to take action against someone accused of bullying, the organization needs to establish whether the alleged behaviour objectively has taken place, its nature and whether the actual events must be considered as a breach of either internal codes of conduct or possibly the relevant national legal code.

Confidentiality

Versus Anonymity

Confidentiality and anonymity are two other principles of great relevance to investigations. The issue of confidentiality in connection with complaints about bullying and harassment has been the subject of considerable debate (Rayner et al., 2002).

It is essential to emphasize that the confidentiality that can be offered to the complainant and others implicated is an assurance that the case and the information received will be treated in confidence as far as it is possible to progress the investigation (Merchant and Hoel, 2003). Thus, complete confidentiality cannot be promised as it would jeopardize the organization’s duty of care, not only to the complainant but also to other organizational members who may be at risk of similar treatment. It is a challenge for investigators to balance the need for witnesses to inform the investigation and the facts of the case whilst keeping the investigation as confidential as possible by limiting the information witnesses and other employees receive about the case.

By contrast, as it would breach the principles of natural justice, organizations should not offer anonymity. Anonymity, in the sense that one may be permitted to put forward allegations w'hich are not fully disclosed to those named in the complaint, represents a breach of the general principle of natural justice. Every employee must, therefore, be assured that any complaint made against them will be brought to their attention in full, and they will be given unrestricted opportunity to defend themselves against the allegation(s). In this respect, some negative examples emerged from the ‘#metoo’ campaign where some organizations dismissed male members without proper process (Hoel and Vartia, 2018). In addition to militating against the principles of fairness and justice such organizational responses would also have negative implications for employees’ trust in organizational processes.

The potential dowmside of this is that it could make employees less willing to file a complaint and witnesses more reluctant to come forward. Yet, in the pursuit of fairness for targets, basic principles of justice must also apply to alleged perpetrators.

Vexatious, Malicious and False Complaints

The complaint procedure applies to genuine complaints about bullying and harassment. In this sense, it is important to stress that most complaints which are not upheld or proven may still be genuine and made in good faith. By contrast, vexatious complaints, for their part, refers to grievances that are considered not to be made in good faith, e.g., when made for personal gain. False or malicious complaints signify complaints w'hich are fabricated or not rooted in reality and which may be deliberately set out to harm. Vexatious, false and malicious complaints must not be tolerated by the organization, a principle also laid down in the European Framework Agreement on Violence and Harassment developed by the European Social Dialogue (2007), and mentioned in the introduction.

Based in Law and Statutory Requirement

An investigation must be rooted in relevant organizational policies and procedures, as well as in the organization’s value statements, ethical principles and any formal code of conduct. It must also, in principle, be governed by statutory regulation relevant to the case, e.g., health and safety regulations, and specific regulations on bullying and harassment where such legislation exists. It must therefore be expected that the investigators will have a clear understanding of these issues and their implications for the process as well as of their role in or implications for the investigation. This is particularly evident when the investigators draw their conclusions, as it is against such standards that the actions and behaviour revealed by the investigation must be assessed and judged. Where such standards might not be specific or descriptive, but rather refer to general principles of fair human interaction and management, it is to some extent left to the discretion of the investigators to judge w'hether the conduct in question represents a breach of such standards.

As standards, norms and perceptions will change over time, when drawing their conclusions, investigators must apply these as they would have been at the time the alleged incident occurred.

Supported by Collective Agreements

As reported initially, the European Framework Agreement on Violence and Harassment at Work, relies on existing legislative instruments (e.g.. Directive 89/391/EEC of 12 June 1989 concerning measures for improvements in the safety and health of workers at work) and commits the members of the signatory parties or organizations on the employer and trade union sides to implement it within a given time-scale of three years. The Agreement suggests that “a suitable procedure will be underpinned but not confined to the following” (European Social Dialog, 2007)

• • It is in the interest of all parties to proceed with the necessary discretion to protect the dignity and privacy of all
• • No information should be disclosed to parties not involved in the case
• • Complaints should be investigated and dealt with without undue delay
• • All parties involved should get an impartial hearing and fair treatment
• • Complaints should be backed up by detailed information
• • False accusations should not be tolerated and may result in disciplinary action
• • External assistance may help

In is important to note that establishment, revision and monitoring of procedures should be done in partnerships, across Europe, and independent of custom. Despite these intentions, a report from the European Commission assessing the Framework Agreement (2007) found widespread disparities between countries in the way the agreement had been implemented and its impact at company level (European Commission, 2016).

Responsibilities

To ensure that the investigation is carried out in line with principles for fairness and reasonableness, clear allocation of roles and responsibilities is essential. In terms of the organization’s role, it must ensure that the investigation is carried out in line with the requirements of any relevant legal frameworks, applicable internal policies and any written accompanying internal procedure for investigations. It is also the organization’s role to ensure that they are carried out by investigators who are impartial and perceived to be so, with no links to any of the parties. In other words, trust in investigators and their ability to act in an impartial manner is essential for perceiving the process to be fair (Jenkins et al., 2013). Furthermore, the employer, or the employer’s representative as set out in internal policies, gives the mandate for the investigation and in this way agrees that it can go ahead. The need for impartiality would also apply to those in overall charge of the investigation. In practice this role is often allocated to the head of Human Resources/Head of Personnel. As has already been emphasized, the organization must ensure that the rights of complainant/s as well as alleged perpetrators or those complained against are respected as previously argued. Any support system available to the parties involved must also be established and explained by the employer. To ensure that the remainder of the process is carried out in a way that is fair and defensible should the case at some stage go to court, those entrusted with the role of investigator must have received training in the principles guiding such investigations and their practical application. In very serious cases, for example involving sexual assault or physical violence, or where there is fear of re-offending (or retaliation), suspension of the alleged perpetrator (on full pay) should be considered. Alternatively, it may be necessary to physically separate the parties for the period of the investigation.

As far as the investigators are concerned, their overall responsibility is to conduct an assessment of the extent to which the complaint is upheld or supported. To this end, they will gather the necessary evidence from interviews with those directly involved and witnesses, and if necessary, by obtaining other forms of relevant proof or evidence, including electronic documentation. Furthermore, their role is to assess and weigh up the evidence, drawing a conclusion in terms of fully or partially supporting the complaint, or dismissing it where no, or insufficient, evidence has come to light. As stated above, the evidence must be assessed against any relevant statutory regulation as well as standards laid down in internal policies.

The Investigation Process

There is of course a requirement that successful outcomes rely on investigators being comprehensively trained for their task. Furthermore, it is advantageous that the investigators come from different organizational units with the investigating team being diverse in terms of gender, age and professional background, although optimal solutions might sometimes be difficult to achieve. This also applies to the number of internal investigators employed for the task. Here a team of investigators (two or more) has clear practical advantage, both during interviews, in terms of speed of the investigation and the opportunity to reflect broadly on the case and the evidence gathered as the investigation progresses.

Although a dose of realism is healthy when considering time schedules for progressing a case, time is at a premium here, and the longer the case drags on, the greater the negative impact on individuals involved as well as on the organization. Therefore, the organization should state within their policy a reasonable, specified time-frame within which the investigation should be completed, e.g., within 30 working days after the submission of the complaint. Organizations aiming higher, say 10 days, may find themselves fighting a losing battle. However, as circumstances may vary in terms of the nature of the complaints (e.g., the seriousness of the case and the number of people involved), the context (e.g., to what extent the nature of their work allows people to leave their other duties) and the particular situation within which they emerge (e.g., unanticipated work-pressures, vacation time) there must be room for flexibility as such targets cannot always be achieved. All in all, considerations relating to organization of the process at the outset should not be underestimated, and as was argued by Merchant and Hoel (2003), much can go wrong which cannot easily be repaired if attention to detail slips, particularly at the planning stage. That said, time urgency may be somewhat less important when the process has started and the parties are fully informed about how the investigation process will proceed.

The investigation process consists of four separate stages: 1) Preparation or planning; 2) gathering evidence, 3) drawing a conclusion and 4) writing a report.

1) Preparation

It is the employer, typically head of personnel/HR. who identifies investigators and gives the mandate for the investigation. Such a mandate is essential as it provides the investigator/s with the necessary authority, acting on behalf of the employer, to call individuals to interviews, to access relevant information, including personnel files (within the confines of national and international data protection legislation) and admittance to work areas where necessary. Implicitly it also grants the investigators the time to carry out the investigation. As far as time-frames are concerned, the investigators need to consider the entire process, taking into consideration possible time constraints of an operative nature as well as constraints related to demands from their normal job, ensuring that the investigation can proceed in line with requirements laid down in internal procedures. Where two or more investigators are identified for the task, allocation of responsibilities and division of labour between the team members must be clarified. As it is essential that information obtained is effectively shared between the team members, channels for communication need to be agreed. Similarly, the information that needs to be communicated to the organization during the investigation needs to be considered. As has already been argued, this is particularly evident when the investigators draw their conclusions, as it is against standards laid down in such documents that the actions and behaviour revealed by the investigation will be assessed and judged.

In order to devise a strategy for the investigation, the complaint needs to be studied in detail. Does the complaint suggest that any particular regulation or policy has been breached, what are the main issues, interactions or events emphasized by the complainant, and for which aspects of the complaint are more details required. To ensure that the process is fair and to limit the influence of potential biases, the investigators ought to reflect on their own attitudes and possible prejudices to the parties involved at the outset.

As far as letters or other written communication regarding interviews are concerned. Merchant and Hoel (2003) argue that their wording is of vital importance and needs particular consideration in line with the mandate. Considerations of fairness suggest that the same message should be communicated to complainants and to the alleged perpetrator in terms of the process, including any statements about confidentiality. To avoid interference with the process it is useful to include a passage emphasizing that potential witnesses should not be approached and that any intimidation of witnesses or the opposing party will not be tolerated (Merchant and Hoel, 2003). Similarly, to prevent distortion of facts, witnesses should be advised to maintain confidentiality (North Western Local Authorities’ Employers’ Organization, 2005).

In order to create a non-confrontational, albeit formal atmosphere in what may be a highly charged situation, attention needs to be paid to the physical layout of the interview room in terms of how furniture is placed. Where a case is highly visible, for example where the organization is small and the nature of the case may be associated with personal embarrassment on the part of those involved, it may be necessary to locate the interviews on neutral ground, e.g., off the premises. Interviewees should be informed about their right to be accompanied during interviews, e.g., by a trade union representative or a colleague, although these persons should not represent the interviewees by speaking on their behalf. By providing interviewees with support, such arrangements could help calm down an emotionally heightened situation and may, therefore, be beneficial to the progress of the investigation.

The order of interviews is of importance for the effectiveness of the investigation and to uphold principles of natural justice. Thus, it is recommended to start by interviewing the complainant followed by the alleged perpetrator (North Western Local Authorities’ Employers’ Organization, 2005). Only when these initial interviews have been carried out will it be possible to have a clearer picture of which witnesses need to be interviewed.

2) Gathering of Evidence

As the investigators should establish whether, and to what extent the complaint is substantiated (or proven), their objective is to identify and uncover any evidence which may help them arrive at a conclusion about the complaint one way or the other. Typically the evidence is collected by means of interviews of those directly involved as well as possible witnesses, or by other evidence, an issue we will return to below. Throughout this process the focus must be on facts, disregarding any statement based on beliefs, opinions or personal characteristics.

As the outcomes of the interviews are the basis for the progress of the investigation and the ability to draw fair conclusions. due attention must be given to their preparation, as they must be tailor-made for each case and every interviewee. It is also recommended that the investigators, prior to the more formal questioning, provide the parties with an opportunity to express themselves more freely. Our experience of training investigators tells us that many would-be investigators severely underestimate the difficulty of getting the optimal outcome from an interview, particularly as details of events tend to fade over time, whilst the emotional experiences of the events persevere and sometimes even intensify. Thus, we would argue that even extensive experience of interviewing employees for selection, appraisal and even disciplinary hearings does not automatically translate into the skills needed for the investigation interview. It is not only a question of dealing with emotionally difficult situations in a constructive manner, but also not allowing for personal biases to prejudice or interfere with the process. Investigation interviews should neither be open for dialogue as in appraisals, nor should they provide an opportunity for interviewees to take control of the process by responding entirely on their own terms, steering the interview in their own preferred direction. However, this does not contradict the importance of giving the parties the opportunity to tell the story the way they see it, elaborating on issues they consider relevant to the case. This is in particularly important for the complainant and the alleged perpetrator, while witnesses are to be seen more as a source of specific information that the investigators may need in order to draw conclusions about the case. This also tends to calm down the situation and help the interviewee relax. This is paramount as, where there is a lot at stake, interviewees, particularly those accused of harassment or bullying, but also complainants, in their defense or in their allegations, will attempt to portray themselves in a positive light whilst often trying to weaken the case of their opponent. Cooling down the emotions also opens for better dialogue in the interviews and for more accurate memories to come to the fore.

Thus, investigators must study the complaint and think through the interviewing process in advance, identifying issues in need of clarification. The way questions are best phrased in order to discover and obtain the facts of the case must be given consideration. For example, open questions should be used for interviewees to elaborate or give their account of issues or events and prompts provided for confirmation of facts (North Western Local Authorities’ Employers’ Organization. 2005). Although the ability to phrase questions in a way which unlocks and provides access to facts and chains of events, and the capacity to capture and follow up leads during the course of interviews will greatly improve with practice, experience should never replace the need for preparation. Being part of a team of investigators will also ease these challenges. The importance of being proactive throughout the interview, not letting slip opportunities to follow up a lead, requires concentration. As has been argued by Merchant and Hoel (2003), a failure to pick up threads of evidence could actually lead to injustice. Nevertheless, while being fully in control of the process, interviewers should let the interviewees do most of the speaking and strictly avoid prompting particular responses or putting words or arguments in their mouths. Furthermore, any request from interviewees to speak off the record should always be rejected.

Having interviewed the complainants and then the alleged perpetrator, witnesses who could throw light on the case should be called. Again it is important to highlight that personality characteristics, beliefs or opinions should have no role to play. Witnesses are sources of fact only and do not have a say regarding the conclusion. The number of witnesses to be interviewed will be determined by the needs of the case in terms of the ability of the investigators to gather sufficient evidence to reach a defensible conclusion. Attention to fairness, in terms of a balance of witnesses interviewed for each side, will also impact on the total number of witnesses interviewed as will the organizational resources available. One should note that it may be necessary to interview an informant more than once to clarify matters, or when the emergence of new information requires this. A cautionary note needs to be sounded with respect to other issues giving rise to concern which may surface during the course of the investigation. In this respect it is advised that these are kept separate from the ongoing investigation and, if necessary are reported to the employer. In this respect, it is important to stay “on track” and not be diverted into investigating other issues that may surface during the investigation process. In particular, investigators must avoid drifting into exploring more general issues associated with the working environment.

How best to record or minute interviews has also been a matter for discussion. Whilst Merchant and Hoel (2003) argue in favour of recording, emphasizing that this removes any questions about the accuracy of the account and leaving the interviewer/s to focus on the interactions, traditional note-taking on paper or computer may be a more appropriate approach depending on the nature of the situation and as a way of reducing paperwork by focusing on key issues. A useful compromise may be to rely on note-taking for the summary or minute, and only use the recordings as a back-up where there may be disagreement about what was actually said. However, to maintain trust in the process, it is essential that the interviewee agrees that the minute represents a true account of the interview by signing it or otherwise approve of it. Recording the interview may also prompt more resistance from interviewees and may lead to additional questioning of the process. Moreover, recording and transcribing interviews is very time consuming and will also raise issues around data protection.

Where there are no witnesses or they are unwilling to come forward, or where it is one person’s word against another’s, investigators should seek out other evidence which could corroborate any claim made. In many cases there may be relevant documents in the form of minutes from meetings, written agreements, previous formal warnings or disciplinary sanctions as well as electronic evidence such as text messages, e-mails or statements made on social media. It is important to note that such documentation represents more accurate records of events than human memory. As part of the investigation it can sometimes also be necessary to inspect the physical environment in which an incident is claimed to have taken place to get a clear picture of events or, where there is doubt, to verify the feasibility of the alleged events (Merchant and Hoel, 2003).

3) Reaching a Conclusion

Investigators should work on the assumption that their task is to involve a sufficient number of witnesses to be able to draw a defensible conclusion and not to carry out a complete or exhaustive process (Merchant and Hoel, 2003). In reaching a conclusion they should base their judgment on the principle of probability, rather than providing evidence to prove the case beyond reasonable doubt as would happen in court. However, the more serious the case is in terms of the potential implications it could have for alleged perpetrators should the investigation support the complaint, the higher the level of proof will be required. Thus, in serious cases where dismissal is a likely outcome should the complaint be upheld, the investigators must have strong evidence on their side as such cases may well end up in court at a later stage. Therefore, whilst less serious cases would only require a probability greater than 50% to be supported. very serious complaints may require a probability in the order of 70-80%. However, w'here it is a case of one person’s word against another’s and insufficient evidence emerges to enable investigators to reach a particular conclusion, the complaint cannot be supported. How'ever, as has been argued by

Merchant and Hoel, this does not mean that the complaint is false or malicious. It simply means that not sufficient evidence has emerged to substantiate it.

Based on the facts and an overall assessment of the case, it may occasionally be necessary to conclude that the complaint is vexatious, or rarely, even malicious or false as described in a previous section.

4) Writing a Report

To complete the process, investigators are required to write an investigation report summarizing the process, the facts and the conclusions. The role of the report is to document the investigation process, provide an account of the evidence and present the investigators’ deliberations and final conclusions. Any doubts or uncertainties should form a natural part of the discussions provided in the report, reflecting the complexity of any given case, and where 'realities’ are rarely ‘black or white’. Hence, a conclusion, although clear and unambiguous, may have many different elements confirming the complaint in full or in part. It may also happen that the conclusion reached criticizes and lays blame at the door of both parties, or in some cases may come to the opposite conclusion, pointing out that it is the alleged perpetrator who actually has been targeted by the complainant and not vice versa.

As employers will rely on the report and its conclusion in their final judgment with respect to the nature and severity of sanctions, if any, and as a basis for organizational intervention where important shortcomings are revealed, the report is of considerable importance. As a record of the investigation process, it is of great importance should the case in the end go to court, yet is also important to merely ensure that all parties and the matter have been fairly and reasonably treated. Whilst format and order will vary, the report will normally contain the following elements: (1) The complaint itself and response from the alleged offender, (2) external (e.g., laws and statutory regulations) and internal (policies and procedures) provisions applicable to the case, (3) documentation of the investigation process and the evidence revealed, (4) assessment of evidence and conclusions and, finally, (5) reference to other potential organizational problems that become evident during the process (North Western Local Authorities’ Employers’ Organization, 2005). A well-structured and written report can also act as an important pedagogical tool. In this sense it provides the opportunity for educating the parties involved about the desired norms of the workplace highlighting the basic rules for social interaction and engagement at work. Also, by providing a balanced account of the facts of the case, illuminating the perceptions and feelings of both parties, it offers the protagonists the opportunity to better acknowledge and reflect on each other’s perceptions. Moreover, seeing their own views and perceptions acknowledged in the report, a reflection of having being given the opportunity for voice, should strengthen and reinforce perceptions of fairness and justice even in cases where the conclusions are unfavourable to the complainant (Cropanzano et al., 2007).

Following the submission of the report it is left to the employer to ensure that the conclusion of the investigation is translated into appropriate action depending upon the seriousness of the experiences of those targeted and the potential offence by perpetrators, in line with policy and organizational custom and practices. Appropriate actions must first of all provide a restoration of the working environment of the complainant, securing a bullying-free work situation. Secondly, in line with the organizational policy, the employer must decide on any disciplinary action to be taken against the perpetrator if warranted.

Barriers to a Fair Hearing

As outlined above, the primary objective of investigators is to establish whether there is sufficient evidence to support or uphold a complaint. However, to meet such an objective, investigators need to have the skills to obtain the information necessary to reach such a decision. We would argue that this process is far from straightforward and that success largely relies on investigators’ knowledge about bullying phenomena as well as on their acquired investigation skills. This is evident as a number of factors associated with the bullying process may militate against the opportunity for targets to receive a fair hearing (Hoel, 2009). First, due to the fact that much bullying may take place in private, out of sight of observers, it may come down to one person’s word against another’s. Second, even where alleged perpetrators agree about the nature of individual events, they may argue that these represent separate, isolated events, each with their own logical explanation, thus contradicting targets’ perception that a pattern of abuse exists (Einarsen et al., 2016). Yet, the investigators have to reach a conclusion based on the facts of the case and on the principle of probability. Third, as the parties are likely to have a past (and a future) together, individual acts and their meaning for the protagonists cannot be understood in isolation (Hoel et al., 1999). For example, acts which on the face of it appear harmless or even friendly to observers, may be seen as ironic and directly unfriendly, when seen in connection with previous negative interaction and disagreement (Hoel et al., 2010). In addition, factors such as the alleged perpetrator acting differently in different situations and with different people (Rayner, 1999), the tendency to believe those with greater power (Vickers, 2006) or side with an alleged perpetrator who fulfils a key organizational role (Hoel et al., 2010), as well as victims’ failure to attract sympathy for their case due to mental instability (Einarsen and Mikkelsen, 2003) could all have implications for how their cases are treated. On the other hand, it is also easy to have sympathy with a seemingly trustworthy and vulnerable victim. Given this, we would argue that the ability to uncover the facts of the case and act impartially throughout the process hinges on a combination of knowledge of the phenomena and their effects on those involved, the ability to organize and carry out a complex investigation, interviewing and listening skills and the ability to consider the facts and draw a balanced conclusion. In addition, investigators need to have a sound ethical stance towards these problems and their own role. In addition to the points raised above, there may be further barriers to a fair process:

• • Where employees question the fairness of the procedures or consider complaining to be unsafe in terms of possible retaliation (Hoel and Cooper, 2000), their use will gradually cease. It is, therefore, important to reiterate that even where a complaint filed in good faith is not substantiated, it must never be used as a justification for punishment or retaliation.
• • As investigations can be costly in terms of the resources they absorb, there can be pressure within the organization to limit the number of complaints by introducing measures to assess their seriousness and likely outcome. Such moves could lead to unfairness and could involve some kind of character judgment particularly where such pre-screening processes are not transparent. Such processes could also be seen to protect particular groups or members of the organization, making the powerful or seemingly irreplaceable ‘untouchable’ or putting them beyond complaint.

Where investigations are taken seriously and dealt with in a professional and fair manner, and their conclusions are followed up means of appropriate sanction which makes it clear that the organization does not tolerate bullying, they may not only represent a powerful tool to bring a complaint to a close but may also contribute to prevention by leading to a behavioural change in the work environment. Thus, bullying and harassment are less likely to occur in an environment intolerant of bullying and harassment where complaints are seen to be taken seriously and where there are serious consequences for perpetrators found guilty of such behaviour as appropriate and systematic use of such an approach in dealing with complaints will over time contribute to building a strong informal ethical infrastructure in support of the organization’s more formal procedures (Einarsen et al., 2017).

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