Workplace Investigations: Where And Why They Fail
By Gareth Jones
Workplace investigations can be about virtually anything — alleged harassment, grievance, inappropriate use of the Internet, company property or social media, theft, fraud, bullying. But these investigations have one thing in common. Almost inevitably, someone is going to be unhappy with the outcome. If they can’t attack the facts or the law, they may try to attack the quality of the investigation.
It can be really easy to screw up a workplace investigation. It is important that HR professionals plan and execute investigations competently so that they can withstand subsequent scrutiny. Unfortunately, that often doesn’t happen. Courts and tribunals are awash with cases where a workplace investigation has failed to meet even the most basic of investigative standards.
One of the areas that is most often criticized is interviewing. All too often workplace investigators are found to have failed to:
- identify potential witnesses,
- articulate why certain witnesses were not interviewed, and/or
- where the investigator does conduct an interview, ensure that the interview is thorough, fair and properly recorded.
HR professionals conducting workplace investigations need to be good interviewers. They should know how to speak to people to obtain information that is relevant to the investigation. They have to have the skills to ask the right person the right questions in the right way at the right time and in the right place.
Every interview is governed by six principles. It doesn’t matter if the interviewee is the subject of the investigation, a victim, a complainant, a respondent, a workmate, an independent witness — in fact anyone who may have information that helps you get to the bottom of things. A workplace investigator should consider them all when conducting an interview. These principles are:
Do your homework. Learn as much as you can about your interviewee. Social media can be a rich source of information that you can use to your advantage. Understand the issue(s) being investigated. Of course, you can’t prepare for everything but the more work you put in beforehand, the more likely your questions will be targeted and informed. Plus, you will look very professional.
People tend to be more forthcoming if they think you like them, or if there is some bond or common interest. The opposite is also true. You may consider your interviewee the most odious reptile you have ever encountered — and you might well be right — but if that attitude comes across, the person will inevitably clam up. Do what you can to build a rapport, whether you mean it or not. Be as polite, pleasant and as empathetic as you can, even if it is through gritted teeth.
Make sure you ask all the relevant questions, even the ones that may make you or your interviewee uncomfortable. Don’t be afraid to explore apparent inconsistencies. Cover any area that may be relevant to the issue(s) you are investigating. If you do not, you lay yourself open to accusations of bias and/or conflict of interest, particularly if you work for the entity being complained about. Your entire process may be brought into question. Don’t be afraid to explore apparent inconsistencies.
And don’t forget to end the interview with these three key questions: is there anything you want to add, anyone else you think we should speak to, and is there any other evidence that you are aware of that might be relevant to what we are discussing? Asking these three closing questions will provide some defense if the interviewee subsequently claims that of course he would have told you about an important fact he was aware of at the time of the interview, but “you never asked.”
Keep an open mind. If you have already decided on the merits of an issue, the credibility of your interviewee, or what they are going to say, then why bother conducting the interview in the first place? As a general rule, avoid leading questions, undue deference or aggression, or an obvious bias in the way a question is framed. Use any of these and you — and your employer — may soon lose credibility.
Keep control of the process
It is your interview. Control the process or at least to the extent that circumstances allow. You decide where it is held, what is relevant, what isn’t, whether third parties are allowed to be present and, if they are, what their role is. You decide the tone and pace of the interview and how long it lasts. You decide how it is recorded. That may not be easy, especially where you may have little latitude such as restrictions set out in collective agreements
This is probably the most important principle. In my experience, good workplace investigators are invariably very good active listeners. They focus on what is being said. They make sure they understand what they are being told. They are not afraid to ask for clarification if they do not understand. They never interrupt unless absolutely necessary.
Nobody is a born investigator, not even Sherlock Holmes. Conducting interviews in workplace investigations is a skill that has to be learned through training, practice and experience. Bad interviews make bad investigations. And the consequences of bad workplace investigations can be very serious: facts swept under the carpet, relevant issues ignored or overlooked, increased likelihood of some kind of adversarial process, through-the-roof legal bills, an injustice not brought to light, reputations unfairly besmirched, massive settlements, and adverse publicity. And that is not good for you, or for your employer.
Gareth Jones is presenting Investigative Interviewing in Vancouver on June 13, 2014. For more information on this and other professional development opportunities, please refer to BC HRMA’s online calendar.
Gareth Jones has over 30 years of experience conducting investigations, including workplace related investigations. He has delivered training across the world in how to conduct investigations to thousands of individuals – including many HR professionals.