Off the Clock, Still Accountable: Employers’ Duty to Investigate Sexual Harassment

In 2026, it should come as no surprise that failing to investigate sexual harassment allegations can expose employers to legal risk. Less well-known, however, is that the same obligations can apply to employers even when the alleged sexual harassment takes place away from the workplace.

The sources of potential liability are threefold, arising under occupational health and safety legislation, human rights legislation, and the common law. Employers must maintain a workplace free from violence and harassment and, in certain circumstances, are under a mandatory duty to investigate incidents when they arise. Noncompliance can result in hefty fines and penalties, as well as other legal liability.

An employer’s response to sexual harassment allegations is therefore critically important. Below, we address two key questions employers need to answer when such allegations relate to conduct outside the workplace: When is an investigation required? and When is discipline appropriate?

When to Investigate Off-Duty Sexual Harassment

Deciding whether an investigation of possible off-duty sexual harassment is required should involve consideration of (a) the connection between the allegations and the workplace; (b) the seriousness of the misconduct; and (c) other contextual factors that may suggest an ongoing risk of harm.

Connection to the workplace

The ambit of an employer’s duty to investigate under the Occupational Health and Safety Act is tied to occurrences at the “work site” which, in addition to the employer’s premises and job sites, can also include other locations where employees attend in connection with their employment. This broader understanding is also reflected in the human rights sphere, where the Alberta Human Rights Act offers protection against sexual harassment “with regard to employment.” Such protection extends to any activities that are “in the course of” or “in some way related or associated with employment”.

Whether alleged conduct is taken to have occurred “in the course of employment” often depends on whether the conduct:

• might normally or reasonably be done or authorized while employed;
• is incidental to the employment or logically and naturally connected with it;
• is undertaken in furtherance of duties owed to the employer; or
• is undertaken in furtherance of duties owed to the employer where the employer exercises, or could exercise, control over the activity.

Conduct that takes place during work-sponsored functions will typically be considered sufficiently connected to employment to warrant an investigation, while actions taken by employees on their own personal time and away from their employer’s premises and work areas may not.

Seriousness of the misconduct

The more severe the alleged misconduct, the greater the imperative for an investigation. Thus, an investigation may be warranted even in cases bearing only a tangential connection to employment where the allegations are sufficiently serious to suggest a danger to those working in proximity to the respondent(s).

The severity of sexual harassment allegations can be plotted on a spectrum largely according with common sense: allegations of physical assault, coercion, or confinement naturally fall towards the most severe end, with innuendo or distasteful humour falling toward the opposite side of the range.

Context will also sometimes be relevant. For example, unwelcome advances might be seen as a matter of poor judgment if made in the course of a romantic encounter like a date, or as something more serious if made outside the context of consensual courtship.

Other factors suggesting a risk of harm

Because employers owe a duty to ensure a workplace free from harassment to all of their employees, employers should take a holistic and common-sense approach to evaluating whether off-duty allegations pose a risk of harm to the workforce broadly. Other factors that might pull in the direction of a formal investigation might include:

• whether the allegations are stale or dated, and whether there have been any other complaints or concerns raised since;
• whether the respondent is employed in a position where others would be particularly susceptible to abuse (e.g. working with a vulnerable population, in a position of authority, or with no direct supervision); or
• whether the employer has other information that is either corroborative or refutative of the allegations.
• Finally, it bears mentioning that a duty to investigate can still exist even where the complainant has not asked for, or in some cases is overtly opposed to, an investigation.

Every situation is unique. Whether an investigation into off-duty allegations is required in any particular circumstance should be approached thoughtfully and intentionally, and with the benefit of prudent legal advice.

When to Discipline for Off-Duty Misconduct

If off-duty misconduct is established, a separate question arises as to whether that misconduct justifies discipline. The general rule is that discipline should not be imposed for activities employees undertake in their personal lives unless those activities impact the workplace in some way. Adjudicators will often ask whether the conduct:

• harms the employer’s reputation;
• renders the employee unable to perform their duties satisfactorily;
• causes coworkers to refuse or be reluctant to work with the employee;
• constitutes serious criminal misconduct; or
• interferes with the employer’s ability to manage its workforce.

Two recent decisions offer practical examples where off-duty misconduct was sufficiently connected to the workplace to warrant discipline. In City of Calgary and ATU, Local 583, [2023] AWLD 3919 (Alta Arb – Casey), the Arbitrator upheld dismissal for a transit operator who propositioned a coworker for sex and touched her breast without consent while both were off duty. The Arbitrator found that the conduct harmed the employer’s reputation, undermined the grievor’s ability to perform in a position of trust, and would have caused coworkers to be reluctant to work with him.

The Ontario Court of Appeal in Metrolinx v Amalgamated Transit Union, Local 1587, 2025 ONCA 415 found discipline appropriate on similar reasoning in a case where numerous employees had engaged in an off-duty text conversation involving speculation that one of their colleagues had performed sexual favours for career advancement. Although the texts took place virtually and away from the workplace, the fact that the messages came to the impugned employee’s attention and caused her to become upset at work created a sufficient nexus to the workplace to justify discipline.

Key Takeaways

As is often the case with harassment, there is no one-size-fits all approach to determining whether an employer must or should investigate or discipline for off-duty sexual harassment. Each case must be approached on its own facts taking account of factors emphasized in the jurisprudence. When in doubt, be sure to contact a member of our Labour and Employment Team for some practical and timely advice.