The respondent interview - Part I: Five (of many) things you need to know

Jill McMahon - Wednesday, April 24, 2013

When an employee is accused of doing something wrong (we call them a respondent in a workplace investigation), they may lose their job or worse, their reputation. Understandably, that can put people on the defensive.

They may engage in a number of strategies to minimise the consequences – from refusing to cooperate, to outright denial and spreading the blame to others. All of that can make the respondent interview a challenge.

Here are just a few pointers to help you start out on the right foot.

Don’t assume that all respondents will be hostile
We naturally tend to assume that someone accused of wrong-doing will try to deny it or at least make it difficult for us to find out what happened. Don’t assume anything.

In fact, the research on this (involving serious criminal offences) suggests about a quarter of offenders plan to deny wrong-doing, about a third decide to cooperate, and almost half wait to see how they’re treated. If people accused of wrong-doing are treated in a confrontational way then they are less likely to confess.

What if a respondent refuses to cooperate?
You cannot infer guilt from silence. Decisions are made on the basis of available evidence. If the evidence establishes a balance of probabilities that the respondent did something wrong, then without an alternative explanation, the decision-maker may find against them.

If a person declines to answer questions you can advise them calmly that a decision will be made based on the evidence, and that their perspective won’t be represented in that decision-making process.

What if an investigation leads to criminal charges?
If there is a possibility of criminal charges you should consider whether the police should be handling the matter first. If this has already been dealt with and police have given the go ahead to investigate, or won’t act until your investigation is complete, you need to understand the role of the caution.

In administrative investigations, the evidence can only be used in administrative decision making. For a confession to be admissible in a criminal trial a criminal caution should be provided first. There is nothing to stop a civilian investigator giving a criminal caution thus making the evidence admissible in a criminal hearing.

If you have any knowledge of criminal law and someone incriminates themselves, you can give the caution before proceeding, and the evidence will probably be admissible in a criminal court. However, any use of a civilian investigation into a criminal matter is almost certainly going to be contested in court.

How much information should you share with a respondent?
The investigator needs to provide enough detail for the respondent to understand what it is that they are being accused of.  For example, “Now, about this incident at work ...” probably isn’t enough. “It’s been alleged that you physically assaulted John Smith at work on the afternoon of February 18th” may be all it takes.

The more experienced an investigator, the better able they are to use their judgement - based on the nature of the allegations and scope of the investigation – about whether to adopt “selective or gradual disclosure” of evidence as a means of trying to obtain as full an account of the incident or events as possible.

This can also help identify key details that may be in dispute between parties and therefore require further investigation. For example, “You say that you pushed Mr Smith against the wall once. Someone who claims to have witnessed the incident says you grabbed Mr Smith by the hair and banged his head against the wall several times.”

Should the names of complainants be provided to a respondent?
Two principals come into play here: fairness to the accused, and protection of the complainant. The respondent must be provided with sufficient detail to respond to the allegation and that may include details of the complainant who is a victim.

However, an investigator needs to use their judgment. In some cases, disclosure of the complainant is unnecessary. But this must be weighed against the risk of the respondent making incorrect assumptions about what they’re being accused of and being unable to defend themselves against what could be a malicious complaint.

Interested in exploring these issues further? Professor Ray Bull is conducting a series of Master Classes on Investigative Interviewing in Brisbane, Sydney, Melbourne and Perth. Click here for further details.

Can you conduct a workplace investigation? Wise Workplace offers a full or supported investigations service.  Just call us on 1300 580 685 if you need help.

Investigative interviewing: five strategies to ask questions that count

Jill McMahon - Wednesday, April 17, 2013

Construction worker on the phone 

A sub-contractor on a construction site was instructed by a lead contractor to start drilling through a wall - despite warning signs on site that indicated the risk. He hit an electrical cable and received a massive shock. Amazingly, he lived.

As the dust settled, managers of several businesses involved in the project, realising the potential liability from this breach of health and safety, initiated a full investigation.

This incident is typical of the kind of health and safety breach that benefits from independent investigation – there is too much at stake for any of the parties involved to investigate this incident themselves.

The key is to obtain a complete account of what actually happened.

Here are 5 key strategies, or steps, in the process of asking questions of the people who were involved in or witnessed the incident that a professional investigator would use to get as close as possible to the truth of exactly what happened.

Step 1 - Obtain a free recall
A free recall is an account of events offered by a person free from guidance or interruption by the investigator. The investigator should ask a very broad open question seeking as much information as possible from the interviewee about the incident. It’s always advisable to seek a free recall before asking specific questions. For example: “I am investigating the circumstances surrounding John James’s accident. I’d like you to tell me everything you can about how it happened.”

Step 2 - Establish a timeline
Create a timeline based on the information obtained in the free recall. A timeline is a chronology of events. This will form a road map for questions later on in the interview. You may need to obtain evidence that requires the order of events to be very clear. For example: “When did Mr Smith ask you to start work on the drilling? Was that before or after you received the briefing from the electrical contractor?”

Step 3 - Recreate the context
Recreating the context of events surrounding the incident can be an effective way of obtaining a free recall. You can do this through verbal instructions to the interviewee. For example:  “Please close your eyes and think back to the time of the incident. Imagine where you were and then tell me everything you can about what happened” – and by asking them to draw a sketch. Encourage the interviewee to describe verbally what they are drawing at the time, and also ask them to label the diagram and sign it. Use this to ask clarification questions. For example: “You have drawn the stairs over here, was it directly opposite that window?”

Step 4 - Obtain a second recall
Interviewees rarely disclose all information in a first recall. Asking a person to recall the events for a second time normally produces more detailed information. But it’s a good idea for investigators to narrow the questioning to more specific issues; otherwise the interviewee may lose interest in the interview. For example: “In the first interview, you said Mr Smith was in a hurry to get the job done, can you explain why you had that impression?”

Step 5 - Ask probing questions
Probing questions are those that seek specific answers. They should be open to allow an unlimited range of responses wherever possible, but the occasional use of a closed specific question to clarify a point is also advisable. (Closed questions are those that illicit only a single “yes” or “no” response - or a very limited range of responses.) An example of a probing question may include: “What training have you been provided on the use of this machine?”

For further information on investigative interviewing skills you can purchase a copy of our book Investigative Interviewing here.

31 Days 31 Tips - Complete List

- Wednesday, September 14, 2011

During August we posted daily tips on investigations on our website, facebook and twitter. Here is the complete list of those tips.

31 Days 31 Tips

 Tip 1 – Silence is an interviewer’s best friend

Tip 2 – Don’t assume anything

Tip 3 – If in doubt ask

Tip 4 – Consider each case on its merits

Tip 5 – Be warm and neutral

Tip 6 – Respect cultural difference

Tip 7 – Start your questions with “tell me what….”

Tip 8 – Know the purpose of your investigation

Tip 9 – Draft a terms of reference

Tip 10 – Make a written investigation plan and update it as you go

Tip 11 – Credibility is only an issue when the facts aren’t clear

Tip 12 – Get specifics from complainants

Tip 13 – Include time, date , place in allegations

Tip 14 – Everyone has a right to silence in regard to criminal conduct

Tip 15 – Invite witnesses to bring a support person

Tip 16 – Keep complainants and respondents informed during the investigation

Tip 17 – Ensure the chain of evidence for digital data

Tip 18 – Digital data can be manipulated

Tip 19 – Second hand accounts can be used but are less reliable than fist hand accounts

Tip 20 – Give respondents enough time to respond

Tip 21 – Give respondents enough information to respond

Tip 22 – Verify signature on documents if you going to rely on them

Tip 23 – Provide support services for all parties to an investigation

Tip 24 – Avoid advocating for either side before the investigation is complete

Tip 25 – Don’t comment on the outcome until the report is approved

Tip 26 – Move the respondent not the complainant

Tip 27 – Ask witnesses to sign all notes/statements or records of interviews

Tip 28 – Only suspend a person during an investigation where serious misconduct is likely to have occurred

Tip 29 – Know your policy and process before you start

Tip 30 – Don’t promise confidentiality if you can’t guarantee it

Tip 31 – Decide who will get a copy of your report before you write it.