In an article on the International Employment Lawyer website titled "Adapting employee investigations to the world of remote working", VOW partner Nicolas Simon gives some insights in the do's and don'ts for internal investigations by the employer (or professionals) concerning harassment or other forms inappropriate behaviour at the work place, especially now these investigations take place during a pandemic.
Some interesting excerpts from the article:
"An employer’s internal investigations must strictly comply with relevant legislation or regulation. “In Belgium, for example, the employer needs to appoint a prevention advisor who is specifically trained to deal with psychosocial issues,” explains Van Olmen & Wynant partner Nicolas Simon. “The investigations of this advisor are entirely confidential, and they enjoy a legal dismissal protection. At the end of the investigation, the advisor will hand over their recommendations to the employer, who will need to take this into account when enacting measures. If the internal procedure does not result in the recommended or necessary measures, the social inspection services can be called upon to intervene.”
In cases where the allegations are significant, Simon suggests temporarily removing the alleged perpetrators from their workplace to another post or suspending them for the duration of the investigation. “However, employers need to be careful as these measures might cause them to violate their own obligation to provide work to the employees or it could constitute a unilateral modification of the employment contract, which can lead to constructive dismissal. An alternative is to move the victim to another department, with their consent, to no longer be in contact with the perpetrators.”
As highlighted in numerous studies this past year, with the covid-19 pandemic keeping workers physically separated from one another certain types of inappropriate behaviour have decreased while others, such as digital harassment, have increased. Those charged with reviewing allegations of employee wrongdoing have largely had to conduct their investigations remotely, although, as Simon explains, efforts to organise in-person meetings can be made where it is important to do so.
“In Belgium, prevention advisors less often go into companies, but employees can still talk to them face to face, subject to social distancing or with the protection of plexiglass,” Simon says. “This is more effective because it is important to read the body language of the employees involved.”
