Canada: Empathy in Workplace Investigations

By Chantel Levy © Rubin Thomlinson March 19, 2021
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a meeting of the minds between two people conceptual graphic

​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 a 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 of being judged as a "bad person."

I remember having several thoughts as my friend left for an interview, seeming on edge. I hoped that as a respondent my friend would be able to have clear, articulate responses despite the emotions. If not, I hoped the investigator could understand why and make best efforts to still capture the 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 behavior. However, let's say that the individual 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 that individual's 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 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 a support person, but it is offering a support person if the interviewee is struggling. It is seeking to understand that person's perspective so that you are better able to build trust and rapport, to extract the best evidence.

Practicing Empathy

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 individuals 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 that 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 being investigated for wrongdoing and facing potential consequences. Rather than take it personally, be live to the issue and consider whether the respondent's behavior may factor into your credibility assessment. If his or her demeanor or an inconsistency is something that needs to be addressed, give thought to how you will put this to the respondent, to ensure that you articulate your observation with neutrality.

6. Keep your eyes on the prize. Empathy is a critical skill that will assist in the effectiveness of your practice. Empathy is twofold—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.

Chantel Levy is a lawyer and workplace investigator and trainer with Rubin Thomlinson in Toronto. © 2021 Rubin Thomlinson. All rights reserved. Reposted with permission of Lexology.

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