Workplace investigations rarely happen in a vacuum. Employees bring their fears, expectations, and sometimes other people into the process. One of the most common and challenging scenarios for HR professionals and workplace investigators is when a participant asks to have another person present during an interview. This might be a union representative, a lawyer, a support person, or a colleague. While these requests are understandable, they raise important legal, procedural, and practical considerations.
For those conducting investigations, handling the presence of a third party requires a careful balance between procedural fairness, compliance with law and applicable policies, and the integrity of the investigation itself. This blog explores how to navigate these situations effectively, including how to manage an overzealous advocate, what to do if the support person turns out to be a witness, and what the proper role of a third party should be.
This is also an area where many investigations go off track. At Bridge Legal and HR Solutions, we regularly see investigations undermined not by bad intentions but rather by uncertainty and lack of resources. We are happy to provide appropriate training and consultation to help you handle these situations confidently and professionally.
Understanding the Right to Have Someone Present
In Ontario, there is no automatic right for an employee to have a support person present during a workplace investigation interview, outside of specific contexts. Unionized workplaces are the most notable exception. In those settings, collective agreements often grant employees the right to union representation during interviews that could result in discipline.
In non-unionized workplaces, the presence of a third party may be specifically prohibited by the wording of an internal harassment policy. Allowing a support person may be necessary, however, as an accommodation under the Ontario Human Rights Code – for example, where an employee has a disability that affects their ability to participate meaningfully in the process. In other cases, if the policy does not specifically prohibit a third party from attending, it might simply be a compassionate option for an employee who is nervous about going to their interview alone.
Clarifying the Purpose of the Third Party
Before any interview takes place, it is critical to clarify why the third party is being allowed and what their role will be. Many problems can arise when expectations are not set at the outset.
A third party in an investigation interview is typically present as a support person or observer. They are not there to answer questions, cross-examine witnesses, argue the facts, or advocate in a legal sense. Their role is limited and passive.
Best practice is to communicate this clearly in advance, ideally in writing. Investigators should explain that the interview is between the investigator and the participant, and that the third party may not interrupt, coach answers, or otherwise interfere with the process. At Bridge Legal and HR Solutions, we train investigators to set these boundaries early and revisit them at the start of the interview. Doing so not only protects the integrity of the investigation but also helps the participant feel safer and more grounded, knowing that the process is structured and predictable.
Managing an Overzealous Advocate
One of the most challenging situations investigators face is an overzealous advocate. This might be a lawyer who treats the interview like a cross-examination, a union representative who objects to every question, or a support person who repeatedly prompts the interviewee.
When this happens, it is important to stay calm and professional. The investigator is responsible for controlling the process. Allowing inappropriate advocacy can compromise the fairness of the investigation and, in some cases, its defensibility.
If an advocate begins to overstep, the first step is a gentle but firm reminder of the agreed-upon role. For example, you might say that you appreciate their presence, but remind them that questions must be answered by the participant directly.
If the behaviour continues, it is appropriate to pause the interview. State clearly what the concern is, and what needs to change for the interview to continue. Document these interventions carefully in the interview notes.
In rare cases, it may be necessary to end the interview and reschedule, or to proceed without the third party if they are unwilling to comply with reasonable boundaries. When asking a third party to leave an interview, consideration must be given, of course, to whether they are there as a courtesy or because such representation is outlined in a collective agreement or other policy.
Training plays a significant role here. Investigators who have practiced these conversations in advance are far better equipped to manage them in real time. Bridge Legal and HR Solutions offers practical, scenario-based training on handling difficult interviews, including managing third parties who challenge the process.
When the Support Person Is Also a Witness
Another common and often overlooked issue is the support person who turns out to be a witness. This can happen when an employee brings a trusted colleague or manager into the room, only for it to emerge that this person has relevant information about the allegations.
From an investigation standpoint, this is problematic. Witness contamination is a real risk. The presence of a witness during another person’s interview can influence evidence, intentionally or unintentionally.
If it becomes apparent that the third party may be a witness, the investigator should address this immediately. The appropriate response is usually to require that the person leave the interview and to explain why. This should be done respectfully, emphasizing the need to preserve the integrity of the investigation.
In some cases, this issue can be avoided through better screening at the outset. Ask in advance who the support person is and whether they may have any involvement in the matters under investigation. While participants may not always be forthcoming, asking the question demonstrates diligence and can support later decisions if concerns arise.
The Importance of Procedural Fairness
Procedural fairness is a cornerstone of defensible workplace investigations. Allowing or refusing a third party must be assessed through this lens.
Fairness does not require that the process be perfect or that every request be granted. Rather, it requires that decisions be reasonable, consistent, and explained. Investigators should consider the power imbalance between the parties, the seriousness of the allegations, and any human rights-related needs.
Documenting the rationale for decisions around third-party attendance is essential. If the investigation is later challenged, clear records will help demonstrate that the process was thoughtful and fair.
Why Training and Experience Matter
Navigating third-party attendance is one of many reasons workplace investigations require specialized skill. This is not simply an administrative task. It is a complex, high-stakes process that sits at the intersection of employment law, human rights, and organizational risk.
Bridge Legal and HR Solutions provides both investigator training and third-party investigation services across Canada. We focus on real-world challenges, not just legal theory.
For organizations that prefer to engage an external investigator, our third-party investigation services offer independence, credibility, and expertise. Using an external investigator can be particularly helpful when allegations involve senior leaders, HR, or issues that are likely to escalate.
Conclusion
Having another person in the room during a workplace investigation interview can add complexity, but it does not have to derail the process. With clear boundaries, strong communication, and a solid understanding of Ontario’s legal landscape, investigators can manage these situations effectively.
For HR professionals looking to strengthen their investigation practices, investing in training and knowing when to bring in external expertise can make all the difference. Bridge Legal and HR Solutions is proud to support organizations across Ontario in conducting fair, thorough, and defensible workplace investigations. To learn more about how Bridge Legal & HR Solutions can support your workplace, connect with us today through our contact form or call us at 647-794-5442 for a consultation.
