Timing is Key: When to Interview the Subject of a Workplace Investigation
October 2020 - 2 min read
While all workplace investigations are unique, there is a general pattern to the order of operations:
- A complaint is received.
- The complainant is interviewed.
- Documents and other supporting evidence are gathered.
- Witnesses, if there are any, are interviewed.
- Once most all of the available evidence has been assembled and assessed, the investigated employee is directed to respond. The response may come in the form of an interview and/or a written response to questions.
Often, by the time the investigation has run its course and turns to the investigated employee for their statement, the employee has been made aware of the allegations against them and has had ample time to craft an appropriate response. The response may focus on denying or minimizing their culpability. To the frustration of the investigator, employer and complainant(s), it can be less than fulsome.
This is often the case in investigations with no independent witnesses or paper trails, such as cases involving harassment or bullying. The he said/she said nature of the evidence may allow a problem employee to avoid appropriate discipline. An option is to interview the subject early in the investigation. A properly conducted interview by a skilled investigator is an opportunity to get unrehearsed and untailored statements about what occurred on the record, which is particularly valuable for investigations when it is anticipated that there will be little to no independent or corroborative evidence and/or the investigated employee is likely to be deceptive.
The purpose of the initial interview is not to trick or manipulate the investigated employee into incriminating themselves, but to obtain their version of events: an untailored version that provides details on what took place, with whom, where and when. The interviewer will look to get the investigated employee’s commitment to a timeline and key facts.
As the investigation unfolds, evidence that directly contradicts statements in the investigated employee’s initial version may emerge. A deceptive employee may have committed to a timeline or facts that later become untenable.
At the end of the investigation, the investigated employee may now be re-interviewed. The purpose of this second interview is to address contradictions in the evidence that have arisen and any implausible details from the initial statement. The investigated employee is provided with an opportunity to explain any misleading or false narratives they may have provided. These explanations are usually strained and awkward.
Depending on the nature of the impugned conduct that prompted the investigation in the first place, the consequences for providing false or misleading statements to the employer during the investigation may be more severe than those for the conduct in question. The disciplinary options available to the employer may become significantly broader and more impactful.
A skilled investigator will approach a file with a detailed plan. Their knowledge and experience will allow them to craft a plan suited to the investigation and designed to produce maximum information from which accurate and reliable conclusions may be drawn. The order of witness interviews and the structure of these interviews will be key components of the investigative plan.
Field Law can assist with all aspects of a workplace investigation. Please contact Jason Harley or any member of our Sexual Misconduct + Harassment group at any time for training or assistance with your investigations, policy review, or response development.