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Nurturing a Safe Reporting Culture: Confidentiality, Procedural Fairness and Empowering Change

August 21, 2023

When workplace investigations are particularly sensitive, such as with workplace harassment, bullying and sexual harassment, organizations must navigate a delicate balance between maintaining confidentiality and ensuring procedural fairness to protect their employees, the work environment, its work culture and reputation. Here’s why protecting confidentiality is so essential to building your employees’ trust in the complaint reporting and resolution system, and steps you can take to promote it along with procedural fairness.

Confidentiality in investigations

Confidentiality is crucial in workplace investigations, creating a safe space for individuals to freely share their experiences, concerns, and allegations. A recent study by the University of Western Ontario, University of Toronto, and the Canadian Labour Congress revealed many employees don’t report harassment and violence in Canadian workplaces, with reporting barriers remaining problematic. To encourage reporting, addressing participants’ expectations around confidentiality is vital, fostering open communication without fear. While there might be times when confidentiality needs to be compromised, assuring individuals that their identities and information will be protected increases the likelihood they will report. Organizations should adopt an approach that reassures employees, encouraging them to voice their opinions while being transparent about the limitations of absolute confidentiality.

Procedural fairness and confidentiality

Procedural fairness ensures that all parties involved in an investigation are treated fairly and without bias.  Practically speaking this means that each participant involved in an investigation must have the opportunity to present their case, to respond to allegations against them, and to be heard. Balancing procedural fairness and confidentiality requires careful consideration of the information and evidence shared, who may or may not have access to it, and how the information is used to reach a fair outcome.

What happens when confidentiality is breached?

Serious consequences can arise if confidentiality is breached, including undermining trust, damaged reputations and working relationships.  After a breach, participants in an investigation may hesitate to report future concerns because they fear their information will not be kept confidential. Participants may face retaliation or harassment if their identities are exposed.  A breach of confidentiality can tarnish an organization’s reputation, affecting its ability to attract and retain talent, as well as its relationships with clients and stakeholders, and could even have legal ramifications.

Preserving confidentiality and privacy

How do we strike the balance between thorough fact-finding, procedural fairness, and preserving confidentiality and privacy? Here is a list of best practices.

Clear communication: Start investigations by establishing transparent guidelines and confidentiality expectations. Inform participants about any limitations to confidentiality and when information may be disclosed. Clearly explain their role, involvement, and the type of information they may provide. Address hesitant witnesses by assuring them that their input is crucial but only a part of the overall evidence. Emphasize the investigation’s purpose and the value of their input. For eager witnesses, clarify that their involvement does not grant access to the final conclusions.

Need-to-know basis: Carefully evaluate all evidence received and direct questions about the evidence only to those individuals directly involved in the investigation.  This ensures that confidentiality is maintained to the greatest extent possible.

Secure documentation: Implement secure systems for storing and accessing investigation-related documentation.  Use password protection, encryption, and restricted access to maintain the confidentiality and privacy of the information. 

If possible, offer anonymous reporting options: If appropriate and feasible, provide the option for anonymous reporting channels, such as hotlines or online platforms, to encourage individuals to come forward without fear of retribution.  Ensure that these reporting channels are secure and protect the anonymity of the reporter.

Training and Education: Provide regular training to all employees, highlighting the importance of confidentiality, privacy, and the reporting process.  Empower individuals to recognize and report misconduct while respecting confidentiality.  Promote awareness campaigns, whistleblower protection and non-retaliation policies.

Assess your safe reporting culture: Analyzing your organization’s health and safety culture using workforce perception surveys or best practices audits and other evaluations, is an effective strategy to help organizations obtain a thorough assessment of its safety culture.

Ongoing support: Offer support, such as counselling or employee assistance programs, to participants throughout the investigation. This demonstrates a commitment to the participants’ well-being and encourages participation.

Encourage questions: Let participants ask any questions they may have about the process, their role, or any concerns they might have.  Address questions honestly and thoroughly. 

Contemplating the way forward

How can you and your organization strike a balance between the need for confidentiality in investigations and the desire for procedural fairness, transparency and accountability?  Consider how to adapt your strategies to promote a secure reporting culture and effectively manage confidentiality challenges in an ever-changing landscape.  As you strive to strike the delicate balance between confidentiality and transparency, remember that change starts with empowering individuals to share their stories, and organizations must be ready to listen, learn, and act accordingly. As the proverb said, we reap what we sow, and when organizations focus on building a strong safety culture, it will undoubtedly have a positive impact on its employees, the organization’s culture, business reputation and the bottom line.