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My first experience with a workplace investigation was vicariously first-hand, when a close friend of mine was named as a respondent and I became their de facto support person. The investigation was ongoing for three months. During that time, my friend ate, slept, and breathed that investigation. Fear and embarrassment were common themes that came up as it related to job security, confidentiality, and the investigation process. My friend also had concerns that they would be judged as a “bad person.”
I remember having several thoughts as my friend left for their interview, seeming on edge. I hoped that they’d be able to articulate themselves clearly despite their emotions. If they couldn’t, I hoped the investigator could understand why and make best efforts to still capture their evidence accurately.
Years later, I find myself conducting workplace investigations. I have had interviewees express to me their reservations about the process, as well as say, “You must think I’m… [insert negative adjective].” I often think back to my friend’s experience and consider how I can best practice empathy and make the process less stressful and more effective for all those involved.
What is empathy in the context of workplace investigations?
Empathy is most commonly understood as placing ourselves in someone else’s shoes, to attempt to see the issue from their perspective.
In the past, I’ve been asked why I would want to put myself in the shoes of someone accused of wrongdoing, especially when dealing with workplace offenses that are more egregious. The obvious answer is – we don’t know whether they have engaged in that behaviour. However, let’s say that they had. I view empathy as more general in nature – it is not to picture yourself in the exact situation as it relates to a specific allegation, but more so, to consider how you would feel if you were involved in an investigation. What would you need from the process to feel comfortable providing best evidence? Would you be able to respond to questions in a coherent, linear way, or would emotions get the best of you? Would you lie to escape consequences?
We have all done things that we are not proud of and in an investigation, we are meeting parties at what is likely not their best moment. Empathy in investigations is to manage our own biases and acknowledge that people are complex and layered and not to draw conclusions about a person’s character. Empathy is seeking to understand their perspective so that you can tailor your questions and conduct the interview more thoughtfully and effectively. Keep in mind that one of the goals of a workplace investigation is to assist in the restoration of a safe workplace.
That being said, empathy is not sympathy. It is not minimizing harmful conduct or avoiding difficult questions because you do not want to upset the party. It is not being their support person, but it is offering them a support person if they are struggling. It is seeking to understand their perspective so that you are better able to build trust and rapport, to extract the best evidence.
Like anything else, empathy is a practice that requires effort and discipline. Here are a few considerations:
1. Be as timely as possible and keep parties updated on the process
Be up front about the process, set expectations about the timelines involved, and avoid any unnecessary delays in the investigation. Clear communication will help reduce the feeling of looming suspense.
2. Get their perspective
You can ask parties this directly. In my practice, I generally begin interviews by asking them what their general take or perspective is on the concerns, before we delve into each specific allegation. Their response will help you better understand their feelings and position, as well as help you gauge where the interview is headed and how you can best manage it.
3. Be thoughtful
As investigators, we routinely hear highly personal information which we may become desensitized to over time. However, the individual sharing that information may find it stressful or difficult. Know when to pause or come back to a “heavy” area of questioning, rather than push through.
4. Watch your tone and questions
This is something I have had to work on since my transition from litigation where the manner of questioning was adversarial. My colleagues have suggested simple “tweaks” such as saying, “Tell me more about that,” as opposed to more confrontational questions such as, “What do you mean by that?” or “Why is that relevant?” Being judgmental can come across in your tone and questions, which may lead to parties becoming defensive.
5. Don’t take things personally!
Often, a respondent may come off as rude, abrasive, or defensive during an investigation. It is important to remind yourself of how difficult it must be to respond in a dispassionate manner when they are being investigated for wrongdoing and facing potential consequences. Rather than take it personally, be live to the issue and consider whether their behaviour may factor into your credibility assessment. If their demeanour or an inconsistency is something that needs to be addressed, give thought to how you will put this to them, to ensure that you articulate your observation with neutrality.
6. Keep your eye on the prize
Empathy is a critical skill that will assist in the effectiveness of your practice. Empathy is two-fold – it will provide a space where parties feel safe to deliver their evidence and it will assist you in managing your own biases to gain clarity when assessing the evidence.
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