A roadmap for HR professionals to manage the interface among the areas of mental health, privacy, human rights, OHS, employers’ policies, and misconduct.

By Bob Acton, Ph.D., R.Psych., LPI *

The road of managing workplace misconduct, employee’s mental health, privacy legislation, human rights, occupational health and safety (OHS) requirements, and employers’ responses includes many branches and intersections. It is a complex path that human resource (HR) professionals must travel as they guide their organizations in a manner that effectively addresses both the needs of the employer and those of the employees.

It is even more complex when complaints of harassment, discrimination, or workplace violence arise and when investigations are initiated. This brief article provides an overview for HR professionals of factors to consider when faced with these demands. Let’s start with some definitions.

It is worth using the analogy of a roadmap when navigating these complex issues. When driving on the road, we should follow the laws and rules of the road. In this context, legislation regarding privacy, human rights, and occupational health and safety form the rules of the misconduct road system. Although legal precedents such as case law are also important, they are beyond the scope of this introductory article.

HR professionals are no doubt intimately familiar with these acts, and they should be the basis for your actions in cases where mental health and misconduct collide. Here is a quick summary of each law.

Privacy

The Alberta Personal Information Protection Act (PIPA) and the federal Personal Information Protection and Electronic Documents Act (PIPEDA) pertain to private sector organizations, businesses and, in some instances, to non-profit organizations for the protection of personal information. The Freedom of Information and Protection of Privacy Act (FOIP) pertains to governments and municipalities. All three require organizations to protect the privacy of their client and employees.

Human Rights

The Canadian Human Rights Act and the Alberta Human Rights Act prohibit discrimination based on a set of protected grounds such as race, colour, ancestry, place of origin, religious beliefs, gender, gender identity, gender expression, age, physical disability, mental disability, marital status, family status, source of income, and sexual orientation.

Occupational Safety

The updated Occupational Health and Safety Act modified in 2018 now enshrines a worker’s rights to know about any potential hazards in the workplace, to participate in workplace health and safety processes, and to refuse dangerous work. Moreover, employers are required to have a written health and safety plan to ensure that employees are not subject to harassment or violence, supervisors take responsibility for employee safety and workers themselves refrain from causing harassment. Moreover, the employer is required to investigate any claim of an unsafe workplace.

Employers are also obligated to investigate when they know or have reason to believe that an employee is being subjected to discrimination, harassment or other unlawful conduct in the workplace. Be careful: only investigating when the complainant provides a written complaint is a common mistake emanating from inaccurate organizational policies.

Misconduct

Behaviours related to harassment, discrimination, and workplace violence, if substantiated, could all be considered misconduct. Misconduct is an overarching concept that references inappropriate workplace behaviour. It includes two subcategories: (1) gross misconduct and (2) general misconduct.

  • Gross misconduct is either deliberate wrongdoing or gross negligence by the employee that fundamentally damages the trust and confidence in that employee. This may include different types of misconduct (e.g., serious OHS offences, theft). Gross misconduct often entitles the employer to a summary dismissal (dismiss the employee without notice).[1]
  • General misconduct includes actions that are serious and unacceptable, such as being late for work or wasting time during working hours, but that don’t reach the threshold of gross misconduct.

Your Organization’s Policies and Procedures

While you can rely on the various pieces of legislation to help you, it’s important to have your own policies in place. These will help you and your staff understand how your organization will deal with these issues. Relevant examples include policies on maintaining a respectful workplace; reporting of harassment, discrimination and/or bullying; privacy; and the nature of the investigative process. It should be noted that some of these policies are now required by legislation. It is best to create a policy about the criteria to determine if an internal or external investigation is best.

Mental Health and Illness

While the preceding areas are relatively structured and have associated rules and guidelines, they can become complicated when issues of mental health arise.[2]

A person’s mental health can have a significant impact on his or her behaviour before, during, and after a misconduct incident. It can also have a significant impact on the investigation process. Therefore, it is important that this be taken into consideration each time a complaint is brought forward, and an investigation initiated.

Good mental health means more than the absence of symptoms. It includes the ability to be engaged, productive and ‘present’ in one’s work and to cope successfully with the inevitable challenges that arise. It recognizes the range of thoughts, feelings and behaviours that are part of being human, some of which can be quite distressing, but includes an ability to manage these in an effective manner. If an employee’s distress is severe, persistent, and interferes with their ability to enjoy life and work effectively, it may be that they are suffering from a mental illness.

The term mental illness includes a wide range of conditions that affect how we feel, think and behave. These issues can arise in all employees. Sometimes a mental illness can be transient, but some can be chronic. Some people can be disabled by an illness whereas others can function very well in the workplace with an existing mental illness.

“The overlap among all these areas is complex. Where do I start to weave through all of the regulations and issues to make the right choice about what to do?” – an anonymous HR professional

The Interaction Between Misconduct, Investigations and Mental Health

As noted, the mental health of all parties can come into play at various points during complaints and investigations. Let’s examine a few questions that will help guide us on our roadway.

  1. How should the HR professional handle the situation when mental health and illness are important factors to consider?

Mental health is always important to keep in mind and when mental illness is introduced into the investigation, consult with your team. This team may include a mental health professional to help you with the process, your own EAP, or a disability management expert.

Remember, words associated with mental illness are often used inappropriately. Depression is a good example and it, along with stress and anxiety, will be one of the top problems identified in the workplace. For example, “I’m depressed” is a phrase that has many meanings: from somebody expressing a “down” day to feeling sad to having a formal, diagnosed illness of Major Depressive Disorder.

When a mental illness is disclosed, ensure that it is disclosed from the appropriate medical personnel. Simply having an employee tell you he or she has a mental health issue is insufficient. However, while it may be insufficient in a formal sense, it is typically a sign from the employee that more conversation is needed.

Always get professional advice about how to manage the situation. It saves you from making an error based on an assumption.

  1. Can poor coping and mental illness increase in the context of an investigation?

Yes, at many points in the process. Let’s consider a few points in time during the process of a complaint and an investigation.

Functioning Before an Incident: Whether they are the targets or perpetrators of allegations of misconduct, how well a person functions before an incident can be a significant factor in how well they manage during an incident and after the incident. For example, if an individual is struggling with mental health issues, their prior functioning could play a role in the perpetration of misconduct or in the response to an act of misconduct. This is also true for how a person responds to the aftermath of the investigation and the post-investigation workplace.

Functioning After an Incident: Similarly, the incident itself can be traumatic and cause or contribute to mental health problems. While the individual’s prior functioning may be predictive of how they respond to an incident, this is not always the case.

  1. Can the investigation itself cause or exacerbate mental health problems?

Yes. The investigation itself can be very stressful if it is not handled appropriately. Using a trauma-informed approach with evidenced-based cognitive interviewing techniques can drastically reduce the stress associated with the investigation.

Using a trauma-informed approach means being aware of and sensitive to how a range of experiences over an individual’s life may impact their current mental health behavior and status. It means being aware of the range of unexpected potential reactions you might receive from employees in high-stress situations. It also helps you to adjust your behaviour to help the employee manage challenging situations. Therefore, your approach recognizes both the impact of trauma in the workplace and the signs of trauma in employees and responds by integrating that knowledge into your procedures and actively resisting re-traumatizing people.

Cognitive interviewing is an appropriate method of questioning that is inherently trauma-informed. It is an evidence-based method designed to enhance the recovery of accurate memories and is used by the police. Using an inappropriate technique, such as an interrogation approach, will almost guarantee a drastic increase in stress which can compromise the investigation.

  1. How does employee coping impact the investigation?

Coping can take many forms, but the HR professional is best advised to consider all the behaviours in which a person engages to be coping behaviours, be they helpful or not. Common helpful coping methods include adaptive approaches like problem-solving, expressing feelings, and seeking support. Maladaptive coping strategies may include worrying, attacking, withdrawing, avoiding and, at the extreme, self-harm. A general rule is that the more mental health and stability a person has, the more adaptive their response will be. Consider adopting this frame: “This person is coping the best they can, at the moment”

A good response for the HR professional is to listen and be empathic. Outline the policies and guidelines that the organization will use to manage the situation, ensure that the person will be taken seriously, and refer them to the company EAP or local health or mental health resources if needed. Remember, use the golden rule and treat people like you’d like to be treated.

Post Investigation: Given the complexity and high stress involved in an investigation, people can be expected to respond in many ways. An increase in stress and conflict may occur if the investigation did not meet the people’s expectations. This is more likely to occur with an unsubstantiated complaint, a removal of a favourite employee, or misleading or inaccurate rumors, and can undermine staff morale and contribute to further incidents. Upsurges in both constructive and destructive approaches to a conflict can occur at this point. It is very important to ensure that staff communications, particularly to other staff that may be indirectly impacted, are managed carefully and that privacy is respected.

The group or team in which the people work can also be disrupted, so the wise HR professional will need to anticipate this and start some post-investigation team renewal activities.

  1. Is there a common risk for HR professionals?

Yes. A common mistake is to say, “he or she’s a complainer” and then to ignore the person’s complaints or draw past issues into the present investigation. In the beginning, treat each complaint separately. Once you are adjudicating the investigation findings, you can bring past behaviour into play to help determine the best outcome for your people and the organization.

  1. What shall we do when mental health issues are suspected to be in involved?

In this case, when deciding on an investigative approach, use a staged approach. Start with an internal assessment of the complaint. If you decide to hire an external investigative firm, ensure that they have the expertise to manage the situation and guide you effectively.

  1. How does the involvement of the medical system impact HR’s actions and the subsequent investigation?

Physicians may respond to their patients’ distress and requests for time off from work due to factors associated with misconduct. As such, the physician may make a formal diagnosis or may simply send you a note to say “___ will not be at work for 2 weeks.”

This common scenario can stall an investigation, particularly when the employee is verbally reporting to HR what the physician has said. This is a perfect time to engage your support team (including your EAP or disability expert) in order to have a level of specialized expertise help you manage the case. Small businesses that don’t have a support team can have a disability management firm work with them on a single case, thus not incurring large fees for a continuous contract. The patient’s physician could be engaged as well, to get an accurate report of their findings as it affects work.

If the respondent is off on medical leave, then do your best to complete what you can of the investigation, but be persistent, and when the respondent returns, reactivate the investigation. In the interim, ensure that you have all the facts from the respondent’s physician. If the complainant is off on leave, you should obtain as many facts as are available. Much can also be learned by talking to people other than the complainant and respondent, inspecting the alleged scene of the incident, and reviewing documents. This will ensure that you have as much data as possible to make timely, informed decisions.

Summary

In conclusion, the road that an HR professional has to take in order to manage the interaction of mental health or illness, misconduct, and an investigation is complex. It is important that you are informed about current legislation and that your organization has created and communicated relevant policies and procedures, as your policies will be the guide to adjudicate the findings obtained in the investigation. Ensure that the privacy, safety, and rights of all people involved (complainant, respondent and bystanders) are respected. Be mindful of the possible impact on managers and HR personnel, including yourself.

A roadmap checklist is available from the author. Please contact him at bob@falcongate.ca

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*  Thanks to Glen Haner and Dr. Merv Gilbert for their input on this article.

[1] Employers may be expected to comply with the “Burchell Test” such that a summary dismissal will only be fair if the employer: (1) believed the employee to be guilty of misconduct, (2) had reasonable grounds to believe that the employee was guilty of the misconduct, and (3) had carried out a reasonable investigation.

[2] While mental health involves both personal and work life, this article will only focus on the context of the workplace.