How Workplace Investigators Can Navigate Questions from the Parties to Build Trust

Two people at a table.

At Bridge Legal & HR Solutions, we understand that workplace investigations can be a sensitive and complex process for both parties and employers. It’s crucial for all parties involved to feel respected and informed throughout the investigation, and – as the main point of contact for the Complainant and the Respondent – it often falls to the investigator to explain the investigation process. Answering questions the parties may have in an honest and transparent fashion is not only essential for the integrity of the investigation but also vital in managing expectations and building trust.

Below are some common questions that come up during investigations, and some suggestions for answering them. We cannot outline every possible question here, but Bridge Legal & HR Solutions is always available to assist workplace investigators through consultation and/or training. Moreover, when a complex investigation may be beyond the capacity of in-house teams, our experienced investigators are here to help.

1. Independence of the Investigator

One of the most common questions we encounter is: “How are you independent if you’re paid by the employer?” Parties often begin an investigation questioning the independence of the investigator, and feeling they are there to “rubber stamp” a conclusion the employer has already reached. It’s crucial to clarify that in a workplace investigation, the parties involved are the Complainant—the individual raising the concern—and the Respondent(s)—the person or persons the complaint is directed against. The employer, while funding the investigation, does not participate as a party. While issues of conflict of interest sometimes arise during an investigation, such issues do not arise simply because the investigator is paid by the employer.

The investigator typically receives instructions from a designated individual within the organization, often a Human Resources representative or a senior manager. However, this person should not be one of the parties involved in the investigation, and it is up to the investigator to flag any potential conflicts or bias with respect to their point of contact at the organization. An ethical investigator will keep the investigation process transparent and separate from the employer’s interests, and by outlining this for the parties, we can build a foundation of trust with both the Complainant and the Respondent.

2. Decision-Making in Conflicting Accounts

Another frequent concern is: “How will you make a decision when it’s a ‘he said/she said’ situation?” In cases where the Complainant and Respondent were alone when the alleged conduct occurred, Complainants often worry that they will not be believed, since they have no witnesses to offer. At times, they will even refuse to participate in the process because of these concerns. Accordingly, it is important to articulate for the parties that in workplace investigations, we operate under a “balance of probabilities” standard. This means that the investigator needs to determine which version of events is more likely (not whether the Respondent is “guilty beyond a reasonable doubt,” as would be the case in a criminal investigation). Accordingly, even in situations in which the evidence may not be corroborated by additional witnesses, we can still make determinations based on the relative credibility of the parties involved and the totality of the evidence presented.

By outlining the decision-making process upfront, we can mitigate anxieties and build confidence among the parties involved.

A common question that arises during workplace investigations is: “Can you give me legal advice?” Particularly for investigators that are also legal professionals, it’s important to clarify this matter to ensure that all parties understand the limitations of our role as independent investigators. The straightforward answer is no; as an independent third party, we cannot provide legal counsel to any participant in the investigation. Our primary responsibility is to conduct a fair and impartial investigation based on the facts presented, without offering legal opinions or guidance.

Parties involved in the investigation should also be encouraged to seek their own legal representation if they have concerns regarding their rights or the legal implications of the investigation. In unionized environments, employees may also have access to union representatives, who can advocate on their behalf and offer guidance during the investigation process.

The Value of External Investigators

Even when an investigator makes their best effort to build rapport with the parties, to answer their questions, and to build trust, there will be occasions when one or both parties are unable to trust that an internal investigator is truly independent. For this reason – and also given the complexities inherent in workplace investigations – it is sometimes beneficial to engage external investigators.

At Bridge Legal & HR Solutions, we specialize in conducting thorough and impartial investigations. We also provide training for in-house investigators to empower your team with the skills they need to handle investigations effectively. With our support, organizations can navigate these challenging situations with confidence and integrity. To learn more about how we can support you, contact Bridge Legal & HR Solutions – (647) 794-5442 or at admin@bridgelegalhr.ca 

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