Taking a trauma-informed approach can help workplace investigations

By Tony Poland, LegalMatters Staff • Taking a trauma-informed approach during workplace investigations can be pivotal to ensuring the evidence is balanced, accurate and complete, says lawyer and workplace investigator Simran Bakshi.

Bakshi, of Mortimer Khoraych PC, says because people deal with trauma differently, it is important to take a personalized approach to each investigation.

“What I find to be traumatic can be very different compared to someone else’s threshold,” she tells LegalMattersCanada.ca, “so it is important to be vigilant about potential trauma among participants.

“On the one hand, it is imperative to have a consistent and fair process, and so there are certain steps that you are always going to go through in the investigation.  But in terms of how you conduct an interview and specifically the techniques that you apply to questioning participants, I find that it is essential to tailor your approach to the sensitivities they may present with.

Some people are naturally more comfortable with speaking about their experiences. Others may be more reserved and require more time to open up,” Bakshi adds. “Some  want to be in control of how they share their perspective of what has happened, and do not require being asked as many questions. Other people benefit from being asked more questions to steer them along. It really depends on the person.”

The goal of a trauma-informed approach is to foster a safe and supportive environment.

The Public Health Agency of Canada notes this concept is “familiar to many organizations and service providers.”

“Trauma and violence-informed approaches are policies and practices that recognize the connections between violence, trauma, negative health outcomes and behaviours,” the government states.

‘Fundamental changes’ are sometimes needed

According to the agency, trauma and violence-informed approaches “require fundamental changes in how systems are designed, organizations function and practitioners engage with people” and are based on the following key principles:

• Understanding trauma and violence and their impacts on people’s lives and behaviours.
• Creating emotionally and physically safe environments.
• Fostering opportunities for choice, collaboration and connection.

Trauma and violence-informed approaches are not intended to treat trauma but to “minimize the potential for harm and re-traumatization,” the government states.

“The trauma-informed approach in workplace investigations recognizes that trauma can stem from a wide range of experiences, not just incidents of violence,” Bakshi says.

a safe, empathetic, and equitable process

She notes this approach “creates a safe, empathetic, and equitable process that respects participants’ diverse responses to stress, whether rooted in overt conflict or subtler forms of harm.”

“There are some pretty obvious circumstances where you need a more trauma-informed approach, such as when you are dealing with sexual harassment or sexual assault complainants,” Bakshi says. “However, it is important to recognize that reliving events that are at the heart of an investigation may also be traumatic for respondents and witnesses. Adding to this, when you are interviewing any party in a workplace investigation, particularly respondents, there can be a degree of anxiety and fear associated with the process and it is important to turn your mind to whether there is any trauma underlying this.”

‘Be sensitive to people’s feelings’

“That is why it is essential to be sensitive to people’s feelings in every circumstance,” she adds. “Realizing that trauma can be deeply personal is vital to how you approach an investigation.”

Bakshi says her priority as an investigator is to “hear everyone’s perspective and ensure they have a platform to present their evidence in the best way they feel they can.”

She adds that finding answers during a workplace investigation while employing a trauma-informed approach can be a delicate balancing act.

“Our job is to get to the bottom of what likely occurred, but you still need to be careful about the questions you ask,” Bakshi explains. “It can be quite challenging because every person you interview is going to have a different comfort level where they feel safe emotionally to share.

“You must not only be mindful of identifying any trauma, but then tailor your interview to the person in terms of how to make them feel safe and secure enough to be open,” she adds. “For example, I might tell the participant, ‘My next question is going to be quite difficult’ to prepare them for what I am about to ask. For some people, however, knowing a difficult question is coming might make them uncomfortable. That is why it is important to be sensitive to the circumstance.”

Bakshi says an investigator must “pick up on very subtle cues and continuously pivot until you find the right kind of approach to build an honest rapport.”

The ability to remain neutral and non-judgmental is also required, she says.

“Every so often you are going to get someone who just is not comfortable opening up or those who are very emotional,” Bakshi says. “Sometimes people are even a little bit hostile toward you just because of how traumatic it is to relive their experiences. The key for us is to separate ourselves from that. It is a person’s story that is of relevance, not necessarily the emotion with which that story is told. Our job is to gather and assess the information, keeping in mind that every participant is different and may have a different way of processing and communicating things, sometimes because of trauma.”

Introductory calls are important when it comes to assessing whether someone has been affected by trauma, she says.

‘Initial call can be so valuable’

“You might have an inkling that may be the case, especially when it is a sexual assault or sexual harassment complaint,” says Bakshi. “You know going into those kinds of investigations that you are dealing with a traumatic situation. In other cases, it may not become apparent until the investigation is underway. This is why that initial call can be so valuable. You typically pick up on those cues when you do the introductory calls.”

Respecting people’s feelings is vital, she says, but investigators still have a job to do.

“There is this push and pull which can make an investigation tricky,” Bakshi says. “You still want to do a full, thorough, and efficient investigation, but at the same time, you need to be doing it in a way where you are not causing anyone emotional harm.

“Sometimes you might have to make allowances,” she adds. “For example, you might have someone who has written out their complaint. Often, you would want to have them tell you from start to finish what has happened. But if you are finding that this person is being traumatized by going through it, you might be more inclined to rely on parts of the written complaint.”

Bakshi says an investigator must also be sensitive in their approach to contradictory evidence.

“You must be mindful about not coming from an accusatory place, but still challenging the evidence where you need to,” she says. “You want to be empathetic to everyone involved. But at the end of the day, we still need to do our job. We also need to remain neutral. We can’t give the perception of believing one person over the other.”

Taking a trauma-informed approach sometimes means an investigator must show patience while having the ability to switch gears to find answers, Bakshi says.

‘It is important to be patient’

“There can be circumstances where the individual who has experienced trauma will want to talk about things that are not directly relevant to the investigation. It is important to be patient and let them tell their story the way they feel they need to. In other situations, the individual may say they just cannot go on. That can be frustrating if their evidence is critical,” she says. “But at the same time, you do not want to be pushing someone to the brink of where they could be emotionally and mentally impacted in a negative way. You may have to look at other avenues to get the evidence you need. Again, it is a balancing act, against other objectives such as conducting the investigation in a timely, efficient and thorough manner.”

Bakshi says investigators must also be cognizant of the interviewee’s cultural background.

“There are times when culture can affect the threshold of what somebody finds traumatic, as an example,” she says. “It can make our job more difficult because we all come from different backgrounds

“The key is respecting that everyone has different boundaries and different thresholds,” Bakshi adds. “Your job as the investigator is to identify trauma and pivot with your approach to make sure that people are feeling comfortable enough to share what they feel they need to share.”

At the end of the day, she says it is her job to find the best way to conduct a thorough and objective investigation that can stand up to scrutiny.

“I believe you get the best evidence from a party when they feel comfortable and safe sharing with you. That is across the board. But when it comes to trauma, it’s even more so,” Bakshi says. “You need the person to feel like they can open up to you. However, you must be realistic about your expectations.

“You can’t insulate participants from all traumas all the time.  But you can create an environment where they know what to expect from the process, and feel comfortable and safe when speaking to you.”

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