By David Brown

While the benefits of effective workplace investigations should not be understated, it’s equally important for companies and HR professionals to recognize the legal implications of investigations gone wrong. Here are but a few examples of when an investigator’s conduct can expose them or their employer to legal liability.

Privacy
While an investigator is tasked with gathering evidence and information, he or she must also be sensitive to privacy concerns. In British Columbia, most businesses will fall under the BC Personal Information Protection Act (PIPA) or the Federal Government’s Personal Information Protection and Electronic Documentation Act (PIPEDA).

This legislation governs the collection and use of personal information for both employees and non-employees. An unlawful use or disclosure of personal information by an investigator can quickly lead to a complaint to a privacy commissioner and, in some cases, a lawsuit for the tort of “intrusion upon seclusion.”

Workers’ Compensation
Under the BC Workers’ Compensation Act, there are a number of instances where employers are required to conduct investigations, including in response to a workplace injury or death and if occupational health and safety concerns are raised.

While WorkSafeBC is not normally quick to issue sanctions, failure to investigate can lead to a complaint being filed and a WorkSafeBC field investigator being appointed. WorkSafeBC also has the authority to issue penalties and fines in response to a company’s failure to investigate.

Defamation
Defamation arises when a statement, either spoken or written, is made which tends to lower a person in the estimation of members of their community. Defamatory statements do not normally give rise to a claim if they are truthful or if the publisher has qualified privilege, meaning an interest or a legal, social or moral duty to publish the information.

In the case of a workplace investigation, employers will generally have qualified privilege to investigate accusations, even if these accusations are false. However, investigators must also be vigilant to explore complaints responsibly and professionally and to limit unnecessary disclosure or publication

False Imprisonment
The tort of “false imprisonment” is a bit of a misnomer, as there is no need for a prison or any kind of incarceration. Rather, this type of legal action arises when someone is intentionally confined by another person without legal reason.

In the course of a workplace investigation, false imprisonment may arise during the witness interview. It is important that the person being interviewed be made aware that they can leave at any time and that they are not being held against their will.

Assault and Battery
Clearly, any investigation which has resulted in battery has gone very wrong. However, investigators should also be very clear as to what constitutes the tort of assault and battery. Briefly stated, assault is the intentional creation of the apprehension of imminent harm. No physical harm occurs, but rather the apprehension of harm (think threatening someone with a fist). Battery arises when someone causes an offensive contact such as a punch, kick or shove.

In heated discussions, tempers can flare. For this reason, during the course of an investigation, employers must be aware that a menacing gesture, a push into a chair, or striking an object, creating a projectile, may all amount to the tort of assault and battery.

Investigations enhance company transparency, help correct problem behaviour and address interpersonal conflicts. When properly conducted, they can also help limit corporate liability and avoid the costs and inconvenience of litigation. However, investigators must also be mindful of the legal implications of poorly conducted investigations. In most instances, it is this author’s opinion that the concerns raised in this article will be overcome with a professional, responsible and good faith investigation into legitimate concerns.

This article is the third in a series written on workplace investigations. Read Part One and Part Two now and watch HRVoice.org for additional articles coming soon.

David Brown is an employment lawyer with the Kelowna law firm Pushor Mitchell LLP. For more information on workplace investigations and other employment law matters, please contact David at dbrown@pushormitchell.com.

The merits of any potential claim are always fact dependent. Readers should not take legal action, or should not refrain from taking legal action, in reliance on the information contained in this article and without first obtaining advice from legal counsel in their home jurisdiction.