Fairness in Workplace Investigations: How Much Should Respondents Know?

Workplace investigations are increasingly complex. New workplace investigators often struggle with how much information to share with the Respondent during the investigative process.

Questions often arise such as:

  • How much information is a workplace investigator required to share?
  • How much information should be shared before the Respondent’s interview?
  • What impact will disclosure or non-disclosure have on the outcome of the investigation?

What is the Standard of Fairness?

As a workplace investigator, you are a neutral third party and it is expected that you carry out your investigative process in a fair and objective way. In other words, in your role, you cannot “favour”, or even be perceived as “favouring”, one party over another. Ensuring that you are equitable towards both the complainant and the Respondent in a workplace investigation helps facilitate procedural fairness and is an essential component of your role.

Further, workplace investigators must remember that when the investigation is complete, their report and the entire investigation process may be subject to scrutiny. This scrutiny includes how “fair” the process was for the parties involved. A key element of this “fairness” includes how much and when information is shared with the Respondent.

Disclosure to the Respondent

Prior to an investigative interview with a Respondent, the Respondent should be made aware of the following:

  • What are the allegations made against them;
  • Who is making the allegations against them;
  • Where the alleged incident(s) took place;
  • When the alleged incident(s) took place.

Further, a respondent should also be advised:

  • that they will have the opportunity to respond to the allegations made against them;
  • that they will have an opportunity to provide their version of events; and
  • that they will be permitted to provide the investigator with the names of relevant witnesses that they would like the investigator to interview.

In addition, when the respondent is provided with the above-noted information, they should be given a reasonable amount of time to prepare for the investigative interview. The amount of time required will depend on the number of allegations made.

Conclusion

The role of a neutral workplace investigator is to find and document the facts. When guilt or innocence is pre-judged, the workplace investigator does a disservice to the investigation and all those involved. Workplace Investigators must remain open to all possibilities, ask appropriate questions, and document the evidence. Providing the respondent with the information noted above is a crucial step in creating a procedurally fair process.

In preparing this article, the author interviewed Jamie Eddy, K.C., a senior labour and employment lawyer with Cox & Palmer in Fredericton, New Brunswick. Mr. Eddy noted that  providing respondents with the allegations made against them prior to their investigative interview is “critical” to the entire investigation process. This step provides a respondent “a key element of procedural fairness”. Mr. Eddy warned that should workplace investigators or employers not provide respondents with the allegations made against them before their investigative interview, they leave themselves open to allegations of procedural unfairness.

For additional support, I have provided a ‘Sample Respondent Letter’ (download a PDF below) for your use. Should you be required to need a letter like this in the future, you can adjust this letter to fit your specific requirements.

About the Author

Devan Corrigan

Devan Corrigan is an expert in workplace investigations and labour relations, having spent 20 years in human resources management and labour relations before founding an HR consulting company in 2017. He specializes in conducting workplace investigations including investigating complaints of harassment, sexual harassment, violence in the workplace, and other forms of employee misconduct. He holds a Master of Industrial Relations from Queen’s University as well as an Honours Degree in Psychology and a certificate in Human Resources Management from Saint Mary’s University. Devan’s expertise in human resources and labour relations, combined with his background in psychology, make him a go-to third-party workplace investigator. He is a member of the Association of Workplace Investigators and is on the roster for investigators for the Workplace Investigator Network (WIN).

Devan is the lead facilitator for the Queen’s IRC Fact-Finding and Investigation program.

The Myth of Body Language as a Credibility Assessor

Workplace investigators and human resource professionals should be cautious of relying on the body language of a witness to evaluate their credibility during an investigation.

Fact-finding investigations, especially in cases of harassment, at times turn into an evaluation of one person’s version of events versus another’s, or as some call it, the “he said, she said” dilemma. In these cases, assessing the credibility of the two parties may be the easiest way the investigator can come to any defensible determination relative to credibility. When making a judgement on credibility, evaluating a person’s body language can be tempting and is often supported by many human resource professionals and workplace investigators in Canada. However, the empirical research shows that relying on body language is not a helpful method for evaluating credibility.

To clarify, body language, in the context of this article, includes both verbal cues (speech hesitations, stuttering, voice pitch, and inflections) and non-verbal cues (no eye contact or eye movement in certain directions, fidgeting, and overall nervousness).

What does the research say?

Body language is often referred to in investigation reports when credibility is being determined by the investigator. However, the link between honesty/dishonesty and body language is tenuous. Meta-analyses and experimental studies in the field of deception detection found that neither verbal nor non-verbal cues act as reliable predictors of deception. In other words, there is no conclusive evidence to warrant investigators relying on body language when making judgements on a person’s credibility.

Specifically, Bond and DePaulo (2006) conducted a meta-analysis regarding body language as a predictor of deceitful behaviour and found no relation between the two. In a separate meta-analysis conducted by Sporer and Schwandt (2007), twelve observable behaviours, including eye blinking, gaze aversion, postural shifts, hand movements, etc., were reviewed, and none were found to be correlated with deception. Three additional studies conducted by Wiseman et al. (2012) evaluated whether eye movement is a useful predictor of lying, with all three concluding it was not a useful predictor at all.

Lastly, in the book Talking to Strangers (2019), author Malcolm Gladwell concludes we are not skilled at “reading” others. He quotes a study based on over 550,000 arraignment hearings in New York City between 2008 and 2013. Of these 550,000 hearings, New York City judges released slightly more than 400,000 defendants on bail. A computer program released 400,000 defendants based on the same information that the judges had, including the defendant’s record, age, and what happened the last time the defendant was released. This study pitted man against machine – who would make the better decisions?

Interestingly, the defendants that the computer released were 25% less likely to commit another criminal offense while on bail than those actually released by the judges. The one difference was the judges saw the defendants and factored their impression of the defendants into their decision making. This result is significant and further supports the conclusion that we lack the skills necessary to accurately “read” another person’s body language.

The above studies indicate that body language is not a reliable predictor of honesty/ dishonesty and cannot be relied on to determine the credibility of a witness in a workplace investigation. Non-verbal cues such as eye contact, foot movement, and fidgeting and verbal cues such as speech errors and longer response times do not hold up as indicators of deception.

Why is this research important?

Research shows that relying on body language to assess credibility can be a flawed approach and that body language provides no greater predictive power of honesty/dishonesty than chance. When interviewing a person whose body language suggests that they are being dishonest, ask yourself, where is that assumption coming from? Is dishonesty the best explanation for their behaviour or are other factors at play?

There can be many reasons for certain body language to appear from a witness during a workplace investigation, but why does it appear? Most Canadians will not be involved in a workplace investigation during the course of their careers. When someone finds themselves involved in one, it is only natural for them to be nervous or fearful of the process. This anxiety about the investigative process may explain why some witnesses may appear less than truthful to the investigator when what they actually are is nervous.

Conclusion

It is tempting to believe we can tell when someone is not being honest. We sometimes infer the dissonance in their mind must be somehow reflected in their body. The reality is simpler yet more inconvenient: It is difficult to determine what other people are thinking, and there is little we can do to change this. Workplace investigators are, therefore, charged with sorting through the ambiguity to come to a well-reasoned assessment of the facts.

Relying on an evidence-based practice is paramount to building defensible conclusions. For reliable predictors of honesty/dishonesty, look to more concrete factors such as the following:

Determining the Plausibility of the Witness’s Story
Does the version of events offered by the witness make sense? Does the story “hang together” given the circumstances surrounding the event that they describe? Is the story consistent with what a reasonable person would see as normal in that situation?

Does the Witness have Motive?
Does the witness have any motivation for the investigator to believe their version of events? Are they motivated to lie to the investigator? Typically, if a witness has no motivation to lie about their story, they are likely more reliable.

Can the Witness’s Story be Corroborated?
Is the witness’s version of events corroborated by others? Is the witness’s story coherent with the versions offered by others interviewed? Having corroborating evidence is powerful and can go a long way in determining a witness’s credibility.

What is the Past Record of the Witness?
Reviewing the past record of a witness can be a helpful way to assess the possibility that the witness may attempt to mislead the investigator. This may include reviewing the witness’s disciplinary record for situations where their credibility may have been called into question.

In the final analysis, the evidence is clear – we must not rely on body language to assess credibility. Rather, workplace investigators must be diligent and earnest in relying on facts over feelings, beware of our biases, and to be ready to challenge our assumptions about people.

About the Author

Devan Corrigan
Devan J. Corrigan is the Founder and Principal of Corrigan HR Consulting which provides consultancy services in the area of human resources and labour relations. He is often called upon to conduct workplace investigations in both the provincial and federal jurisdictions. Devan holds an Honours degree in Psychology from Saint Mary’s University and a Master of Industrial Relations from Queen’s University.

 

References

Bond, C.F., & DePaulo, B.M. (2006). Accuracy of deception judgements. Personality and Social Psychology Review, 10(3), 214–234.

Gladwell, M. (2019). Talking to strangers: What we should know about the people we don’t know. Little, Brown and Company.

Sporer, S.L., & Schwandt, B. (2007). Moderators of nonverbal indicators of deception: A meta-analytic synthesis. Psychology, Public Policy, and Law, 13(1), 1–34.

Wiseman, R., Watt, C., ten Brinke, L., Porter, S., Couper, S. L., et al. (2012). The eyes don’t have it: Lie detection and neuro-linguistic programming. PLOS One, 7(7), e40259. doi: 10.1371/journal.pone.0040259

 

Reducing Participant Stress Before a Workplace Investigation

It is normal for participants in a workplace investigation to feel some anxiety, but too much worrying can create barriers to obtaining critical information, which is a challenge for investigators looking to build complete and thorough reports.

Ensuring participants fully understand the process and their role in it can help alleviate unnecessary anxiety during the investigation. With a greater understanding of the process, participants can feel empowered to speak confidently in the interview and provide the investigator with the necessary information.

Where does this anxiety come from?

Participating in an investigation can be stressful. Most people do not have the experience of participating in a workplace investigation and simply do not know what to expect. Without a proper understanding to put their interview in the larger context of the investigation, participants could engage in counterproductive and unhelpful behaviours. They may fear scrutiny falling on their own actions or the consequences of sharing their knowledge of an incident with the investigator. They may feel they have no control over the process and be less than cooperative. They may, intentionally or not, withhold critical information. Some may even refuse to engage in the investigative process at all. All these behaviours act against the goal of uncovering the relevant details of a workplace incident.

These behaviours do not make a participant deceitful but rather it stems from a survival instinct and is linked to the fight or flight response, a mechanism that enables individuals to react quickly to a threat by either facing the threat directly or disengaging it by escaping to a safe place. Viewed in this light, becoming adversarial in an interview or refusing to participate can be seen as rational responses to stress, even if such behaviours are unwarranted. Ultimately, the investigator wants to curb these kinds of emotional reactions from participants’ as they will not be conducive to the investigation.

The investigator must reduce the imagined “threat” in the mind of the participant before conducting the interview. Luckily, there are practical solutions to alleviate anxiety before interviews which will result in a better outcome. This article will provide some tools that will allow the investigator to eliminate some of the unnecessary pressure felt by the participants. This should result in higher-quality interviews.

Although no investigation process is stress-free, ensuring participants understand the process ahead of their interview can greatly reduce their stress. It is clear that some participants like the Complainant and Respondent in a case will likely receive more information than witnesses, but providing information about the investigation to all participants will generally be helpful for the investigator and to the overall process.

Using the following two-step process before conducting an interview will benefit both the investigator and the participants of the investigation.

Step 1 – Introductory Letter or Email

Send a well-crafted letter or email to the complainant(s), the respondent(s), and any witnesses (i.e. all participants).  The letter or email should include the following:

  • the mandate of the investigation,
  • the role of the participant in the investigation (are they the complainant, the respondent or a witness)
  • the expectation of maintaining confidentiality throughout the process,
  • the time and place of the interview with the participant, and
  • request for a pre-interview phone call.

Outlining the process of the investigation in writing from the start will reduce participants’ anxiety level.

Step 2 – Pre-interview phone call

This step is significant in decreasing anxiety of participants involved in the investigation. The pre-interview phone call allows the investigator to provide further details, including introducing themselves, the mandate, and explaining the investigative process in more detail.  This call also provides the participant a chance to ask questions about what is expected of them during the process.  Having this take place ahead of the interview establishes rapport between the investigator and the participant early on and it also humanizes the process. In this phone call, the following issues should be addressed in more depth:

1. Introduction of the investigator

It is important to explain that this call is not the actual interview, but serves as an opportunity for introductions between the investigator and the participant. The investigator should explain that the interview will take place at a later date, and most likely in person. Information provided to the participant can include the professional and educational background of the investigator, the investigator’s role as a neutral third party, and the expectation of the participant to provide truthful answers during the interview.

2. Explain the mandate in general terms

Explaining the mandate during the pre-interview phone call is critical.  If participants understand the purpose of the investigation, they will be able to identify what information is relevant to the matter at hand. This gives the participants confidence ahead of the interview and it helps the investigator as well, since the participant will think more critically about the information that is required.

3. Explain why the organization is investigating the matter

Participants can often be critical of the reasons why organizations conduct investigations in the first place. During this call, the investigator can explain that organizations have a legal obligation to investigate alleged instances of harassment, discrimination, and violence in the workplace, pursuant to legislation in most Canadian jurisdictions. To allay any further skepticism about the investigation, the investigator can also explain that workplace investigations are ultimately conducted with a hope to correct some workplace problem that exists. Again, this explanation should help the participant to understand the process and reduce some stress.

4. Explain what to expect with the investigative interview

Participants often fear the interview, and in particular, the questions that will be asked by the investigator. The investigator should explain that the participants will be asked questions in good faith and will be expected to provide truthful responses. It might also be helpful for the investigator to explain that they will not be trying to “trip up” the participant or trick them with difficult questions. It is important to note that the investigator is not interested in being deceptive but is interested in getting to the truth. Tricks and traps are counter-intuitive to this end. Explaining this to the participant will go a long way in establishing a level of trust prior to the interview.

5. Reconfirm the importance of confidentiality

This might be the most important part of the call with the participant as it is vital the investigator gets commitment from the participant to maintain confidentiality throughout the process. The investigator should relay that ensuring confidentiality protects the integrity of the investigative process. Participants should also be advised that if confidentiality is breached and information leaked to other employees, the entire investigation may be compromised. Depending on the organization’s policy or process, a breach of confidentiality could also result in a disciplinary penalty to the participant culpable of that action

Conclusion

The interview of participants is critical to producing a high-quality investigation. The accuracy and completeness of the information provided by participants during an interview can be skewed, or even incomplete, when participants experience stress and anxiety about the process. This negatively impacts the legitimacy of the investigation. The two-step process outlined above will go a long way to reducing participant anxiety by building rapport and trust between investigator and participant, resulting in higher quality interviews and a more complete investigation.

 

About the Author

Devan Corrigan

Devan J. Corrigan is the Founder and Principal of an HR consulting firm, which provides consultancy services in the area of human resources and labour relations. He specializes in conducting workplace investigations in both the provincial and federal jurisdictions. Devan holds an Honours degree in Psychology from Saint Mary’s University and a Master of Industrial Relations from Queen’s University.

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