While you’re here, you may wish to attend one of our upcoming workshops:
Basic Workplace Investigation Techniques
While you’re here, you may wish to attend one of our upcoming workshops:
Interviewing and Dealing with Difficult Witnesses
Interviewing witnesses can be the toughest part of an investigation, and sometimes our whole case hangs on the information that we may obtain from them. In this workshop, we help to shed light on the challenges we face when interviewing witnesses and provide strategies for dealing with them.
Employers sometimes ask us for guidance on how to share the results of a workplace investigation with the parties. It’s not difficult to imagine why.
All parties to an investigation—so long as they are employees of the employer—are entitled to learn the results of the investigation, as noted in the Ministry of Labour’s Code of Practice.
Yet letting a Complainant know that his harassment complaint was not substantiated, or telling a Respondent that he engaged in bullying, is difficult information to deliver. Information like this can be physically and emotionally overwhelming for the parties to hear, and both may experience a variety of emotions in response. Many of us struggle to know what to do in the presence of someone experiencing strong feelings. It’s no wonder some human resources professionals and managers may be anxious ahead of these conversations. If an employer mismanages this discussion, the employee may become further entrenched in his respective position vis-à-vis the initial complaint, only to prolong the conflict.
Ideally, this dialogue will go beyond simply sharing the results – it can be a chance for the employee to process the upsetting news and to have their questions answered, and for the employer to de-escalate any heightened emotions. Done well, this conversation can be an important first step to rebuilding trust between the employees.
The following tips may help the employer to lead this conversation with skill:
1. Prepare for the conversation
Consider who is the right person to have the conversation. This person should not have been a participant in the investigation and would ideally be someone senior to the parties and with some degree of neutrality to the process. In unionized workplaces, this person should consider working with the union to craft the message to the parties. Assuming that the person is you…
Begin by reviewing your organization’s policies or consulting with in-house counsel to see how much information an employee is entitled to learn about the results of an investigation and any remedial action. Some organizations allow the parties to receive a copy of the investigation report; others allow employees to review the report (but not keep a copy); and others provide summaries of findings for each party, brief letters that the investigator often prepares. Sometimes less is more – sharing too much information about the evidence may inflame tensions and spark new conflict.
If you yourself have any questions about the findings, reach out to the investigator so that you are clear on the report, the process and the results. Then prepare a list of what information you are entitled to share about the results and any remedial action, and what information is off-limits for confidentiality purposes. Prepare a letter that sets out the results of the investigation, as well as the contact information for your employee assistance program (EAP).
Consider what questions the employee will likely ask and think through how you’ll address those questions – again, keeping in mind any confidentiality requirements.
Arrange to meet the employees separately and as soon as possible after the investigation has concluded. The earlier this conversation happens, the sooner the parties will be able to take steps to move on.
Invite the employee to have a face-to-face meeting with you. Find a private, neutral meeting room, off-site if none is available on-site. Ideally, the room will have enough light and space for people to breathe and not feel closed-in. Ensure there’s drinking water and a tissue box on the table. Aim to meet after lunch, since difficult conversations can be easier after people have had a meal. Be sure to schedule enough time for the meeting so that neither of you is rushed, and that the employee has time to take in the information and to ask questions.
Prepare yourself, personally, for the conversation, as it may get heated. Identify your preferred strategy to call on to help you to return to an even keel, should you find yourself becoming emotional. Some people like to take deep breaths, focusing on lengthening their exhales. Others like to feel the ground under their feet to find a sense of steadiness.
2. Have the conversation
Approach the conversation with an attitude of openness and respect for the employee, even if the investigator found that the employee engaged in serious misconduct. Begin the meeting by getting to the point quickly, stating the results. Hand the letter to the employee. Once you’ve revealed the results, pause and give the employee time to absorb the message.
When speaking to a Respondent, keep your language free from blame to avoid putting the employee on the defensive – especially if he or she will be receiving discipline. Keep the focus on the facts of the behaviour and assure the Respondent that you are not making a judgement on their character.
Recognize that any strong reactions on the part of the employee are not about you, even if they appear to be directed at you. It is perfectly appropriate to validate the emotional experience of the employee while maintaining sufficient professional distance. Remember that this conversation is a chance to help the employee to get back on track and empathy can help.
Encourage the employee to ask you any questions that they may have. Listen deeply and don’t interrupt them as they speak. Summarize what they are asking to ensure that you’ve understood and to demonstrate to them that they’ve been heard. Once you have addressed a question, confirm with them whether you have in fact answered their question. Don’t rush this part of the conversation.
If the employee raises new issues or complaints in this meeting, schedule another meeting to discuss those issues separately, or refer the employee to someone else with whom to discuss those matters. Reassure the employee that reprisals on account of participating in the investigation are prohibited and let them know who to speak to should they suspect such behaviour.
Keep the conversation focused on the future. Ask the party what he or she needs to be able to move forward. For example, the Complainant may ask for an opportunity to sit down with the Respondent to speak face-to-face. The Respondent might like a chance to take responsibility or apologize. Both parties might appreciate some time off to process the information. Depending on the request, let the employee know you’ll consider their request and get back to them later (and do).
3. Follow up with the employee
Within 24 hours of the conversation, send the employee an email summarizing what you both discussed. Include the contact information for EAP in the email, so that the employee may reach out for support as needed. If the employee made any requests for what they need in order to move on, tell them when they can expect to hear back from you about the feasibility of those requests.
With preparation, sensitive communication, and timely follow-up, this final piece of the investigation process can be a meaningful step to re-integrating employees after an investigation. Whether or not you also choose to initiate a workplace restoration, these tips may help you to discuss the results with the employee in a compassionate yet deliberate manner, setting the tone for a peaceable and productive return to work.