For most people, participating in a workplace investigation is an unusual departure from their workplace routine. Whether they are a complainant or a respondent, it can be a stressful interaction to sit in a room, with a stranger, and be asked about the details of something that happened, say, ten months ago. One way to address this stress is by allowing a support person to attend the meeting. Indeed, some institutions specifically contemplate the involvement of a support person in their policies. But like anything connected to a workplace investigation you need to think about the support person’s attendance at the interview before it happens. Here are some tips about involving support people in a workplace investigation interview.
What does the support person do?
A support person tries to make it emotionally easier for a party to participate in an interview. They can do this with gestures such as holding the interviewee’s hand and pouring glasses of water, or just by being there. They are meant to be a familiar presence in what can be an unsettling experience. Crucially, the support person is not an advocate. They do not represent the interviewee. They should not be giving evidence or suggesting the manner or content of what the interviewee says. We find that support people rarely have occasion to speak at an interview, other than for the purpose of comforting the interviewee.
Who can be a support person?
It is up to the interviewee to choose their support person. To ensure the integrity of the investigation however, a support person cannot be somebody who might be a potential witness to the matter being investigated, or who may be tasked with making decisions about the investigative findings. Ideally, the support person also does not work with or have supervisory authority over the interviewee. These limitations can be discussed when the investigator first reaches out to the interviewee to set up the interview. Closer to the date, the investigator can ask the interviewee if they will be bringing a support person and if so, who, so as to satisfy themselves that the person does not pose a conflict for the investigation.
Must there be a support person?
To the best of our knowledge, there are no federal or provincial laws in Canada that say that a support person must be present in a workplace investigation interview. As mentioned above, some organizations may have policies that refer to support people. Even in situations where the applicable policies are silent, we think that an investigator should turn their mind to whether the option of bringing a support person should be considered by the parties, and whether it would be helpful to the overall process..
How to handle the presence of a support person at an interview?
At the beginning of the interview, consider having a “ground rules” discussion so that everyone is clear about the expectations associated with being a support person. Here are the points that should be covered:
- Purpose of the interview: It is a fact gathering conversation. It is an opportunity for the interviewee to relay their version of events in their own words and for the independent investigator to ask questions as needed.
- Role of a support person – dos and don’ts:
- The support person provides emotional support through their presence and comforting gestures;
- The support person should not intervene or interrupt the conversation between the investigator and the interviewee; and
- The support person should not offer evidence, make submissions, or otherwise advocate for the interviewee.
- Confidentiality: The support person must keep confidential the information that they hear during the interview.
In our experience, the majority of support people have no issue with these ground rules. In the rare cases where there does appear to be non-compliance during the interview, the investigator should make efforts to politely repeat the ground rules the first time that a lapse occurs. The investigator could also add that the rules exist to ensure the integrity of the investigation and the interviewee’s full opportunity to provide evidence. If the support person continues to be resistant, the investigator may wish to call a break to have a private discussion with that person. In the event of continued and/or serious noncompliance, the investigator may have to consider rescheduling the interview so that a different support person can attend.