By Naomi Schmold, LL.B.
Chief Privacy Officer & Sr Legal Counsel
Ethics & Compliance
Most people in the business of conducting workplace misconduct investigations would agree that they require a dispassionate, objective approach to their work. A good internal investigator is a neutral third party, looking to make a sound determination based on well-supported findings of fact. Evidence must be weighed. Credibility assessed. To ensure fairness, rational analysis must prevail – not emotion, nor partisanship.
Yet at the heart of all internal misconduct investigations are people – subjects of investigations, complainants, witnesses, and investigators. We are all unique individuals with our own backgrounds, biases, and perspectives about ourselves and the world around us. So how, as investigators, do we reconcile an objective yet humanistic approach to investigations? Can an investigator be both dispassionate and empathetic?
Looking at it from a slightly different perspective, I believe an investigator of workplace misconduct allegations has an overarching duty to treat everyone involved in the investigative process with the same level of dignity and respect. In order to do this, investigators need to acknowledge their own preconceptions – often a result of years of experience that sometimes tempt investigators to start prejudicially jumping to conclusions. At the same time, investigators should remain live to the likelihood of the emotional distress other parties to the investigative process may feel – distress often generated because of the unknown. A combination of anxiety, fear, and even shame can be at play in any given misconduct investigation.
Instead of downplaying or ignoring these things, a good investigator acknowledges and even empathizes with the emotional component of a workplace misconduct investigation, and takes steps to soften the jarring effects. This does not mean “siding” with the subject of an investigation, or confusing the role of an investigator with the role of a counsellor or friend. Instead, easing the discomfort of an investigation by consciously focusing on a transparent investigative process is key to ensuring parties are participating in a procedurally fair, methodical, ethical investigation. Being clear about what to expect as a subject, complainant, or witness throughout the investigative process is sometimes overlooked, but could perhaps be the most important way to ensure dignity and respect is maintained for all parties. To this end, organizations should focus on clearly articulating the process steps of a workplace misconduct investigation, including clear triggers for when an investigation will be conducted. This means reviewing policies to ensure expectations around conduct and potential disciplinary consequences are well articulated.
Empathy in the form of procedural transparency will in turn drive integrity in a workplace misconduct investigation process that can subsequently be executed in a neutral and objective way – something all organizations should strive to achieve.
I agree with the empathetic approach. When I am doing those sorts of investigations, I try to relate to every person I interview, regardless of my own preconceived ideas. I find that most people’s perspectives can be understood with a little effort, and in the end I think it helps come to a fair resolution that acknowledges and considers not only plain facts but also the various motivations and other issues impacting behavior. Most people aren’t trying to be bad actors, and will respond well if approached in a non-judgmental fashion. It also serves to get people to talk more freely. I can usually get anyone to tell me what they honestly think is going on, because I am non-critical and interested in their input.
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