Internal Investigations After a Harassment Complaint: How to Conduct Interviews and Make Findings of Fact

Hello, I'm Noriaki Asato, Representative Attorney at LegalAgent.

A company that receives a harassment complaint must ensure the safety of the complainant while clarifying the objective facts that will serve as the basis for appropriate personnel measures and prevention of recurrence. If interviews are rushed and communication logs get deleted, or if the fact of the complaint leaks within the company, the investigation process itself can cause secondary harm or new labor disputes. At the initial stage, the company should decide which evidence is at risk of disappearing and how much information to share with the people involved. It should also think through how to conduct interviews and keep records so that, if accounts conflict, the basis for its judgment is preserved.

The Legal Position of Responding to Complaints and Conducting Internal Investigations

This article focuses on responding to power harassment occurring within a company. Note that for sexual harassment and harassment related to pregnancy, childbirth, childcare leave and the like, the governing laws and applicable guidelines differ, so it is essential to refer to the specific provisions that fit the content of the complaint.

Article 30-2, paragraph 1 of the Act on Comprehensive Promotion of Labor Policies (Japanese) requires employers to take necessary employment management measures, including establishing a system for responding to consultations and dealing with them appropriately, so that workers' working environment is not harmed by conduct in the workplace that is based on a superior relationship and exceeds what is necessary and appropriate for business. Section 4(3) (pages 7–8) of the Ministry of Health, Labour and Welfare's Power Harassment Prevention Guidelines (MHLW Public Notice No. 5 of 2020) (Japanese) sets out four pillars for the response after a complaint: prompt and accurate confirmation of the facts, measures giving consideration to the victim, measures concerning the actor, and measures to prevent recurrence. An internal investigation is the concrete procedure for fulfilling this "prompt and accurate confirmation of the facts." The HR and legal departments handling the matter in practice are expected to hear the individuals' explanations and verify the facts against the evidence before rushing to an outcome such as disciplinary action.

Taking the Complainant's Account and Preserving Objective Evidence

The guidelines provide that the person in charge of the consultation desk, the HR department, a dedicated committee or the like confirms the facts with both the complainant and the actor. As a practical matter, however, it is reasonable to first grasp the outline of what happened by interviewing the complainant, preserve objective materials on that basis, and then proceed to hearing the actor's explanation.

The interview with the complainant is the starting point for extracting leads for the investigation, such as the date, time, place, people involved and specific words of the conduct at issue. Because the account narrows down which objective materials need to be secured, advance preservation of evidence is essential in cases where notifying the actor raises concerns about data deletion or coordination of stories among the people involved. That said, laws and guidelines do not mandate the same order of interviews for every case. Where there is violence or an imminent danger to physical or mental health, the company needs to prioritize cutting off contact between the parties and supporting medical consultation, carrying out preservation work in parallel.

The items to ask the complainant about include not only the date, time and manner of the conduct, but also any third parties present, whether there are related emails, chat histories or audio recordings, and how the complainant later consulted other colleagues. The guidelines also require that confirmation be carried out with consideration for the complainant's physical and mental state and how they perceive the matter, and objective fact-finding and consideration for feelings must go hand in hand.

Securing Electronic Data Before It Is Lost

Once the outline has been captured through the complainant's account, the company secures objective evidence before informing the actor. Business chat logs, timekeeping data, security camera footage and the like are at risk of being lost through automatic deletion or overwriting as time passes. Because internal retention periods vary with system design, the company should promptly coordinate with the IT department and, where necessary, request a deletion hold (legal hold). In practice, it is effective to store collected electronic records without altering their contents as obtained and to clearly record the date and time of collection, the person who did the work, and the period covered. Because a partial screenshot can lead to misreading the meaning of what was said, the company should preserve a sufficient amount of the surrounding logs.

However, even for company-issued devices and business accounts, unrestricted searching that goes beyond the purposes of the business or the investigation into the sphere of private life is not permitted. The company needs rules that limit the search period and keywords in light of the nature of the case and restrict investigators' access rights. For evidence on personal devices or personal private accounts, a practical point to check is carefully considering how far voluntary submission may be requested and whether the procedure is appropriate.

Interview Techniques for the Actor and Other Persons Involved

The interview with the actor is held once the complainant's interview and the collection of objective evidence have reached a certain stage. At the start of the meeting, the company clearly explains that its purpose is to confirm the facts that have been reported and gives the actor an opportunity to explain. If the company proceeds to discipline without this step, the findings of fact and the appropriateness of the procedure may be challenged if the validity of the discipline is later disputed. At the same time, the company instructs the actor to refrain from leaking the investigation outside, coordinating stories with others involved, and retaliating against the complainant. However, the company must avoid excessive restrictions, such as a blanket prohibition on consulting a lawyer for one's own defense or reporting to public bodies such as the Labor Bureau.

In the interview, the interviewer should consistently ask about the objective course of events without preconceptions. Avoid accusatory questions such as "Why did you behave that way?" and start instead with fact-finding questions such as "Please explain in chronological order what happened on that day at that place," then compare statement by statement where the account differs from the complainant's. If the interviewer gets drawn into an emotional conflict, the meeting may end without eliciting specific facts that can support a finding.

Selecting Other Persons Involved and Interviewing Them Neutrally

Where the accounts of the complainant and the actor agree, those points are recorded as undisputed facts. Even where both explanations agree, however, the company should check whether they conflict with the objective materials. What requires careful consideration in practice are the points where the accounts differ, and the company proceeds with interviews of other persons involved to fill those gaps. The guidelines also expressly state that where the parties' accounts are inconsistent and the facts are difficult to confirm, measures such as hearing from third parties are to be taken.

Interviewees should be selected with priority given to people with direct experience, such as colleagues who were present at the scene or people who were consulted immediately after the incident. A person's relationship with the parties is a factor in assessing the credibility of their statement, but the company should avoid mechanically excluding people from selection solely because of how close or distant they are. In the interview, do not feed either party's account to the witness as a premise; have the witness describe, as they are, the facts they personally saw and heard. Leading questions such as "You saw Mr./Ms. X shouting, didn't you?" must be strictly avoided, and the scope of questions should be controlled to the extent needed for corroboration.

Arranging Who Attends and Preparing Records

If an interview is conducted by only one interviewer, it may trigger a new dispute later along the lines of "I never said that." Separating the person who asks the questions from the person who keeps the record is an effective technique in practice. Because laws do not set a uniform number of attendees, the company should arrange the setup with consideration for the interviewee's psychological burden and confidentiality, adjusting the length of the meeting and break intervals as needed.

After the meeting, the company promptly prepares an interview record and, as far as possible, has the interviewee check its contents and asks them to sign or seal it. If the meeting is recorded, the basic practice is to explain in advance the purpose and the scope of use and retention of the recording and obtain consent. This does not categorically deny the legal effect of recordings made without prior consent; it is a practical consideration to secure trust and the fairness of the procedure. In preparing the record, the company should keep objective conduct such as "said X" separate from the recorder's subjective assessment such as "came across as intimidating."

Making Findings of Fact When Accounts Conflict

Even where the accounts of the complainant and the actor are directly opposed and no common ground can be found through third-party testimony, the company records what it was and was not able to confirm and decides its next steps. The prompt and accurate confirmation of the facts that the guidelines require means that the company exhausts the investigation as far as it can, and the final investigation report should separate the facts that could be found on the evidence from those that could not, stating the logical basis for each.

In fact-finding practice, the company closely examines whether each account has shifted over time and whether it is consistent, how well it matches objective materials such as emails and chats and third-party statements, and considers comprehensively the motives and circumstances in which the statement was made. Do not conclude that an account is false merely because memory of the details is vague; assess credibility by separating the core of the events from peripheral parts. For example, there may be cases in which the fact that a certain remark was made can be found from multiple testimonies and logs, but the true intent behind it cannot be determined. In such a case, the company finds the existence of the remark as an objective fact and treats the intent and background separately, as an assessment that takes the actor's explanation into account.

Even where sufficient evidence cannot be obtained and the conduct itself cannot be found to have occurred, the Power Harassment Prevention Guidelines require employers to take measures to prevent recurrence even in cases where the fact of harassment could not be confirmed. The fact that no finding was made does not lead to the conclusion that the matter can be closed without any internal response.

Measures Based on the Investigation Results and Preventing Disadvantageous Treatment

Where the investigation results in findings of fact, the guidelines require employers to take both strict measures against the actor and measures to restore the complainant's working environment. Measures concerning the actor include disciplinary action under the work rules as well as reassignment and an apology to the victim, and examples of consideration for the victim include eliminating disadvantages in working conditions and mental health support from occupational health staff. Article 15 of the Labor Contracts Act (Japanese) provides that disciplinary action that lacks objectively reasonable grounds and is not considered appropriate in light of social norms is invalid. Accordingly, the disciplinary action to be imposed must be decided by comparing the grounds for discipline set out in the work rules with the nature and degree of the misconduct proven in the investigation. If the grounds for discipline include suspicions that could not be found on the evidence, there may not be enough facts to support the discipline if it is challenged in court later.

Appropriate feedback of the investigation results to the complainant is also essential. Although the guidelines provide for measures to protect the privacy of those involved, they do not require the company to disclose uniformly to the complainant all details of the discipline and all internal materials. The scope of what is communicated is decided in light of internal rules and the impact on each person involved. Still, a vague reply such as "We have dealt with it appropriately internally" may make the complainant distrustful and feel ignored. It is desirable to communicate in good faith, to the extent disclosure is possible, an outline of the facts found and the main points of the measures taken, such as reassignment or improvements to the workplace environment.

Prohibition of Disadvantageous Treatment Because of a Complaint or Cooperation

Throughout the investigation, retaliatory treatment of the complainant and those who cooperate with the investigation is prohibited. Article 30-2, paragraph 2 of the Act on Comprehensive Promotion of Labor Policies provides that an employer must not dismiss or otherwise treat a worker disadvantageously because the worker used the consultation desk or gave testimony during the fact-finding investigation. This protection applies equally not only to the complainant but also to other employees who agreed to be interviewed.

It should be noted that not only direct measures such as disciplinary dismissal or demotion, but also unreasonable reassignment against the person's will and unjustly low ratings in personnel evaluations may constitute disadvantageous treatment. Reducing bonuses or pay raises on grounds such as "the person's regular work was delayed because of cooperating with the investigation and attending interviews" poses a serious risk of violating the Act, so it is essential to ensure thorough consideration in personnel evaluations after the investigation is completed as well.

Using External Investigators and Choosing a Dispute Resolution Procedure

Depending on the nature of the case, there will be situations in which it is difficult to secure the independence of the investigation with only the company's HR and legal departments. In cases where the actor is a member of senior management or a director, where there is a strong hierarchical relationship between the complainant and the actor, or where internal interests are intricately intertwined so that the fairness of the investigators cannot be secured, the objectivity of the internal investigation itself will be severely tested. In such circumstances, it is realistic to consider, as an option, moving to an independent investigation by an outside attorney with no conflicting interests. Entrusting the investigation to outside experts and resolving disputes through a public third-party body play different roles. The guidelines also list, as options where internal fact-finding is extremely difficult, applying for mediation under Article 30-6 of the Act on Comprehensive Promotion of Labor Policies and entrusting dispute resolution to a neutral third-party body. When internal fact-finding has reached a dead end, it is time to consider using external procedures or involving experts rather than keeping the matter entirely in-house. In organizations where the consultation desk exists only in name, rebuilding the initial response system that receives complaints is itself an urgent task. Organizational management and labor management during periods of rapid growth are also discussed in detail in Labor Risks Startups Tend to Put Off and Responding to Customer Harassment.