Investigative Interviewing - A Guide for Workplace Investigators

By Harriet Stacey and Alison Page

Conducting interviews into serious workplace issues can be a difficult and sometimes daunting task.
Investigative Interviewing - A Guide for Workplace Investigators is a comprehensive guide to steer HR professionals and specialist investigators through the challenging process.

Complied by professional investigator Harriet Stacey and Industrial Rel

• Language: English
• Publisher: Publicious Book Publishing
• Release date: Oct 1, 2013
• ISBN: 9780987386410

Book preview

Workplace investigations are conducted to examine a variety of issues including complaints about misconduct, unsafe work practices, and bullying. Although each workplace investigation raises unique facts and issues, there are ten common steps to most investigations:

1. Receiving initial complaint.

2. Interviewing the complainant.

3. Developing terms of reference.

4. Interviewing witnesses.

5. Collecting other (inculpatory and exculpatory) evidence.

6. Formulating allegations.

7. Interviewing the respondent.

8. Evaluating the evidence.

9. Decision making.

10. Reporting the findings.

Without diminishing the importance of other investigative processes, the list above shows that interviewing is an integral part of workplace investigations.

The purpose of any investigative interview is to establish the facts of the matters under investigation. The absolute truth about the relevant events can only be determined if relevant events are recorded via electronic equipment, and, even then, the recording is open to different interpretations. The ‘why’, ‘how’ and ‘to what effect’ are often very important questions in workplace investigations, yet these issues are rarely documented or recorded and are always open to interpretation. Interviews will often provide information addressing these questions. Reliance on human memory and perceptions of events makes the extraction and subsequent management of this information all the more critical to the investigation process.

Pitfalls and problems

Most current knowledge about investigative interviewing is based on research concerning the pre-trial interviewing of witnesses and offenders in criminal/police settings. Two fundamental assumptions underpin this research. Firstly, victims and witnesses are innocent and motivated to provide accurate information to the police. Secondly, offenders are guilty and motivated by a need to protect their personal interests, resulting in them making a variety of admissions or denials of guilt when questioned by police.

These assumptions, whilst not always applicable in criminal investigations, rarely apply in workplace investigations. In a workplace investigation, the motivations of the various interviewees can merge to provide a veil of grey where the absolute truth is often impossible to determine. Respondents are often ‘misunderstood’, ‘victims’ are rarely completely without blame, and witnesses often fear that they will be adversely affected by participating in an investigation; so much so that, in many cases, workplace misconduct may not be reported at all.

In an overseas study of ‘close observations’ of thousands of visitors who contacted dozens of Ombuds’ offices over a ten-year period, and that analysed reported reasons for taking action or no action about unacceptable conduct, Rowe, Wilcox, and Gadlin (2009) found the main reasons that people fail to even report unacceptable behaviour were:

Fear of loss of relationships and a loss of privacy;

Fear of unspecified bad consequences or retaliation; and

Insufficient supporting evidence.¹

It is reasonable to extrapolate from this research that interviewees often participate in workplace investigations reluctantly and may not necessarily be willing to share all of their information. So it is important that workplace investigators have the requisite investigative interviewing skills to extract information in these circumstances.

Interviewing during workplace investigations can be a complex task and differs from other forms of HR interviewing, such as recruitment interviews. For reasons of fairness to the person under investigation and cost efficiency, each interview is normally conducted only once. Therefore, it is critical that these interviews are conducted thoroughly, fairly, and competently. As this book will show, following these steps should ensure the integrity of the interview:

Prior to each interview, give the interviewee ‘reasonable’ time to collect supporting documents and find diary entries, emails, etc.

Give interviewees the opportunity to bring a support person.

Treat the interviewee with respect.

Approach the interview with an open mind.

Give the interviewee ‘time to talk’.

Provide the interviewee with sufficient details of documents or other people’s information that support their account of events or actions.

Show the interviewee any documents or reports inconsistent with his or her account of events or actions.

Investigators should also be aware of, and take steps to address, the general problems and pitfalls associated with the investigative interviewing in order to optimise the process.

Investigators should understand that interviewees may be motivated by a variety of factors to provide the truth, half-truth, and outright lies. A variety of factors may affect how interviewees will respond to questions including:

The nature of the allegation.

Their position in the organisation.

Their role in the matter under investigation – that is, whether they are a victim, whistleblower, witness, or respondent.

Whilst investigators can’t control how interviewees will respond to the questions, it is possible to develop skills in asking questions and in analysing interviewees’ responses.

Investigators may also encounter the following common pitfalls during interviews and should attempt to avoid these wherever possible to ensure the integrity of the interview:

1. Leading an interviewee to give specific answers where a predetermined decision has already been made, commonly called ‘confirmation bias’.

2. Using personal characteristics or stereotypes to make assessments of credibility rather than assessing the reliability of the interviewee’s evidence.

3. Failing to ask for specific details of an event.

4. Asking for irrelevant information.

5. Failing to ask questions about inconsistencies in accounts.

6. Using affirming comments and gestures during an interview, which can be interpreted as bias on the part of the investigator.

7. Using an interview only to confirm information already known.

Book aims and overview

This book aims to assist HR professionals and business managers in Australia, particularly those with responsibility for conducting workplace investigations, by:

Filling some of the gaps in current literature concerning workplace investigations with an outline of the rules, theory, and practice on workplace investigative interviewing.

Providing an overview of the knowledge and skills required to:

Conduct workplace investigative interviews with complainants, witnesses, and respondents.

Avoid some of the common pitfalls associated with these interviews.

Providing best-practice tips and planning tools for effective investigative interviews.

This book is divided into the following parts:

Part One – ‘The Rules’ considers the legal issues relevant to workplace investigative interviews.

Part Two – ‘The Theory’ provides an understanding of the principal models and theory of interviewing, including Cognitive Interviewing techniques and interviewing respondents.

Part Three – ‘The Practice’ considers the application of investigative interviewing techniques in the workplace and provides planning tools and tips on how to ask questions.

Part Four – ‘Special Needs’ identifies key issues for five groups of interviewees with special needs and provides tools for dealing with these issues to ensure that information gathered during interviews is as complete and untainted as possible. The special needs of the following groups are considered in this context: victims of bullying and harassment, indigenous Australians, people with English as a second language, people with an intellectual disability, and children.

Abbreviations and acronyms

Throughout this book:

The term ‘investigator’ is used to refer to the person conducting workplace investigative interviews on behalf of the employer, whether this person is from management, HR, or externally appointed.

WII stands for ‘workplace investigative interview’.

There are five key rules that govern WIIs. The applicability of these rules to each interview must be determined on a case-by-case basis. There is no blueprint that will apply in every circumstance.

The five key rules are:

The rules of evidence.

Procedural fairness.

The right to silence.

Privacy, confidentiality, anonymity, and whistleblowers.

The right to a support person.

Rules of evidence

Information gathered during WIIs is used by investigators to establish whether an alleged event occurred. This information is often referred to as ‘evidence’. This book uses the terms ‘evidence’ and ‘information’ interchangeably.

Both evidence and information can:

Inform the investigator as to what happened,