Bystander reports of sexual harassment: What about the wishes of the impacted person?

As workplace investigators, we have observed a rise in reports of witnessed or suspected inappropriate conduct, particularly sexual harassment. Bystanders, peers and leaders frequently report instances of sexual harassment in circumstances where an impacted person has not personally made a complaint. This increase in bystander complaints is consistent with workplace policies imposing bystander reporting obligations and improved societal values and standards about acceptable workplace behaviour.

Bystanders play a powerful role in calling out unacceptable workplace behaviour.  However, this may not always align with the wishes of the impacted person.

Below are some ways to support an impacted person in a sexual harassment investigation where they have not personally made a complaint, and may be reluctant to be involved, or identified.

  1. Consider the impact of a bystander report

An impacted person who felt personally unable to report a complaint may feel relieved and supported that someone else has done so on their behalf. However, other impacted persons who chose not to escalate the matter may view the complaint as an unwelcome intrusion and refuse to participate in a workplace investigation.

There may be many reasons why an impacted person is reluctant to complain or participate in an investigation process initiated by others, including the personal and sensitive nature of the subject matter, fear of reprisal, and lack of confidence in how the matter will be handled.

Significant changes in recent years, including recommendations made by the Australian Human Rights Commission in its 2020 report, Respect@Work: Sexual Harassment National Inquiry Report and subsequent expansions to the Sex Discrimination Act 1984 (Cth) have shifted the focus of ensuring investigation practices support people’s safety and dignity.  These developments are aimed at both encouraging an impacted person to have more control over and confidence in the process and for employers to genuinely consider their wishes and the impact that decisions could have on them.

While it is possible for an employer to direct an impacted person to attend an interview with an investigator in circumstances where a complaint has been made by a bystander, it is rarely consistent with a trauma-informed and person-centred approach, and is unlikely to be in the employer’s best interest.

  1. Tips to support a reluctant impacted person

A commitment to trauma-informed and person-centred approaches may assist in reducing the number of impacted persons who are unwilling to participate in investigations over time. In the meantime, employers can support impacted persons who express concern about their ability or willingness to participate in a formal investigation process by discussing and considering:

  • Support frameworks – discussing additional support that can be provided during the process, including allowing additional support persons, health care professionals and representatives to attend the impacted person’s interview; committing to a firm time limit on the length of the interview; and offering specialist employee assistance programs for sexual harassment matters post-interview.
  • Genuinely listen – consider any specific requests or preferences expressed by the impacted person, such as the gender or seniority of the persons appointed to investigate their complaint.
  • Alternatives to an investigation – consider whether there are options other than a full investigation that may be appropriate in the circumstances, for example, a broader culture review or broader workplace training (that does not make it obvious a complaint has been raised).
  • Communication – appoint a Case Manager / Liaison Person for the impacted person who is responsible for acting as a conduit between the impacted person and the various stakeholders in the investigation process. This may minimise unnecessary contact between the impacted person and others regarding logistical and other non-substantive matters.
  • Confidentiality – committing to maintain the impacted person’s confidentiality and anonymity (where possible).
  1. Requests to remain anonymous

It is not uncommon for an impacted person to request not to be identified throughout an investigation. It is also possible that a bystander who has reported the conduct may also request to remain anonymous as they may fear a negative impact because of their involvement.

While accommodating requests for anonymity is consistent with a person-centred approach, employers must balance this approach with a requirement to provide the respondent with procedural fairness as part of the investigation process. Investigating a complaint where the impacted person does not consent to being identified can add a level of complexity to the investigation process. Investigators will need to consider alternative approaches and strategies that can be adopted in terms of key aspects of the investigation process, including conducting and recording interviews, drafting the investigation report and communicating with stakeholders and other parties. In particular, there will have to be careful consideration as to how allegations are framed to avoid identifying the impacted person to the respondent.

  1. Practical tips for drafting allegations in a manner that preserves anonymity

The allegations should detail sufficient ‘particulars’ (or details) and context to enable the respondent to fully understand what has been alleged. If an impacted person (or a reporter) requires anonymity, investigators will need to modify their approach when drafting allegations.  They should consider:

  • using gender-neutral language;
  • referring to the person who has been subjected to the alleged conduct in a manner that does not identify them as the person who has also made the complaint (i.e. instead of using ‘complainant’ consider using Impacted Person or Employee/Worker);
  • adopting a consistent approach of not identifying any bystander or person interviewed;
  • avoiding specific references to position title, reporting lines or other information that could reasonably lead to the identification of the impacted person;
  • de-identifying documentary material extracted in the allegations; and
  • highlighting factual matters that minimise the risk of the respondent assuming the impacted person has made the complaint. For example: ‘You were observed in the meeting on 14 May saying that a woman on your current project made better sales when she wore a low-cut top’.

In some situations, regardless of the way in which the allegations are drafted, the fundamental nature of the allegations may identify the impacted person (and the reporter). In these circumstances, employers should discuss options with the impacted person (and reporter) including whether the scope of the investigation is modified to include only those matters which can be genuinely anonymised or whether further evidence-gathering can be undertaken which may identify additional corroborative evidence from other sources.

  1. What if the impacted person does not want the complaint investigated?

Ultimately, an impacted person or bystander may decline to participate in a workplace investigation, or not want the matter to be formally investigated. Adopting person-centred and trauma-informed principles does not always mean the employer must comply with the wishes of the impacted person. However, it does mean there must be genuine consideration of the impact on the person.

Every matter should be considered on a case-by-case basis, however, some steps an employer can take if they don’t investigate, include:

  • Ensure the report is recorded as part of the organisation’s risk management processes.
  • Ask the impacted person if they would be comfortable making a statement which will be stored confidentially and not investigated (this may assist with the recollection of details if the impacted person decides at a later time they want the matter to be formally investigated).
  • Monitor the situation.
  • Consider any requests by the impacted person and continue to offer support.

In our experience, it is not an unusual occurrence that an impacted person does not want the complaint investigated. Accordingly, it is important that employers consider and decide what their policy will be in these situations. This policy should also be clearly communicated to those involved in managing and conducting investigations.

Key takeaways

  • Genuinely consider the wishes of the impacted person about whether to proceed to investigation;
  • Put in place appropriate support frameworks and consider whether there are options other than an investigation that may be appropriate;
  • Take steps to protect the confidentiality of the process and to preserve anonymity where requested;
  • In practice, preserving anonymity can be challenging and will require careful framing of allegations, questions during interviews, and information contained in investigation reports;
  • Employers should anticipate that impacted persons may not want a complaint investigated, and have in place a clear policy on the approach the employer will take in these situations.

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