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| Jessica Herfst |
Statistics recently cited at the Association of Workplace Investigators (AWI) annual conference suggest 15 to 20 per cent of the population includes individuals “who have a neurodiverse condition that impacts how they process, recall and communicate information.”
The concept of neurodivergence is a hot topic. It certainly has some application in my job as a workplace investigator in terms of the way people are presenting their stories and how we assess that evidence in a way that is fair and inclusive.
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People who are neurodivergent do not necessarily consider themselves to have a disability, and “neurodivergence and disability are separate concepts,” according to the centre.
Common types of neurodivergence include:
- Dyslexia: A learning disability that disrupts how the brain processes written language.
- Autism Spectrum Disorder: A neurological and developmental disorder that affects how people interact with others, communicate, learn and behave.
- Attention Deficit/Hyperactivity Disorder: A persistent pattern of inattention and/or hyperactivity-impulsivity that interferes with functioning.
The AWI annual conference examined some common misconceptions about neurodiverse communication.
- Myth: Nonverbal communication is a good indicator of credibility.
- Reality: Some behaviour, such as failing to make eye contact, fidgeting, repetitive body movements and long pauses before answers, may be standard for neurodivergent people.
- Myth: Neurodiverse people have inferior memory or are more suggestible.
- Reality: While some individuals may recall or narrate experiences differently, that does not reflect a deficit in memory.
- Myth: Neurodivergence is another word for autism or mental illness.
- Reality: People’s brains can work very differently, and processing differences are not the same as mental illnesses.
The concept of neurodiversity has been gaining traction recently and is an umbrella for many things. However, it is essential to know how to deal with neurodivergence in an investigation especially when we get to the point of actually assessing someone's evidence or weighing their credibility, that is the point where we have to be especially cautious.
The fact that someone has been very limited in their details or that their answers are all over the place might be characterized as evasiveness. Someone might attribute that to poor credibility. But because we have some knowledge about neurodivergence, we begin to see that it might not be an issue of credibility at all.
Recognizing and accounting for neurodivergence introduces one more layer to an investigation. It can make things a bit more difficult because you may have to add another lens in terms of assessing a participant’s evidence.
It drives us to focus on different factors in their credibility, such as corroborating what they have said with documents or other witness evidence.
There is a danger in not properly assessing how a neurodivergent person interacts with an investigator during a workplace investigation. Negatively assessing someone's credibility or not giving them opportunities in an interview to answer in different ways and provide information in a way that suits them limits the way they are participating.
That can result in findings that are skewed and any skew in an investigator’s final report is damaging to our clients because they are facing liability.
It is not just about knowing what questions to ask. Perception is a key piece. We also have to consider the style of questioning knowing that, for example, someone may be having difficulty with focus or attention.
We may need to return repeatedly to ask the same questions again or narrow the scope of our questions. That can be necessary to give them a fair opportunity to respond.
It is essential to keep up with the growing body of research on neurodivergence to be effective as investigators. The research outlining the types of patterns, behaviours and styles of communication that are associated with these conditions is helping to inform us of what might be related to neurodivergence as opposed to issues with someone’s credibility.
More study and medical knowledge about how these traits or conditions manifest themselves in terms of verbal or informational processing can, of course, assist us in better understanding the impact they have on that person’s evidence.
Recognizing neurodiversity in the workplace helps drive inclusivity. All establishments should strive to better understand the impact of people’s unique requirements and support their needs so that we can navigate employment relationships equitably.
It is not necessarily about leniency. Accommodating an individual who is neurodivergent still allows us to be critical about someone’s evidence as long as we can ensure that it is based on something fair to them.
Investigations are important but can be taxing emotionally for participants and hard on the workplace. To ensure everyone has really meaningful participation, so the hardship is worthwhile, it is vital that people can be assured they are going to be treated fairly.
An investigation also requires depth and thoroughness. I remind participants who are upset about the length of time the investigation process takes that we want to get it right the first time. The issue with doing a quick and suboptimal job that fails to consider all relevant aspects, such as issues with neurodiversity, is that the results can be impugned and a new investigation may have to be conducted by another party to ensure that it is fair.
Jessica Herfst is a lawyer and workplace investigator and lawyer with Mortimer Khoraych in Toronto.
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