Even the simplest of workplace investigations can be a tricky balancing act. You need to consider how to investigate the matter, collect evidence and adhere to various laws, all the while having regard to employee welfare and the needs of your organisation.
Investigation plans are essential, and because every circumstance is unique, every investigation must have its own specially formulated plan. But every plan must have three common threads:
- Procedural fairness
- Gathering as much evidence as possible
- Ensuring that all relevant issues have been properly explored
Having regard to these three issues when planning the investigation necessarily involves a consideration of when to interview the respondent. There is no “one size fits all” answer, but there are a number of considerations that may help you make a decision about your approach.
Advantages of interviewing the respondent first
Interviewing the respondent at the start of an investigation has a number of advantages.
For example, when an allegation is made, procedural fairness requires that an investigation is conducted in a timely manner. If the respondent admits the allegation straight away, the matter can be dealt with quickly and perhaps without involving other parties.
This increases efficiency and minimises stress on the respondent and complainant. It also cuts down on management time spent investigating, and there is a greater chance of confidentiality being preserved because fewer parties are involved.
In the course of an investigation, there will often be more than one interpretation about what has happened. There may be motivating factors of which you, or other witnesses, are unaware.
Putting allegations to a respondent at the outset may provide new avenues for investigation that would otherwise have been unknown to you. For example, the respondent may have been provoked by another person.
Interviewing a respondent at the beginning is a good way of getting all the cards on the table so that you can fully comprehend the issues and refine your investigation plan.
Disadvantages of interviewing the respondent first
Putting allegations to a respondent must be done in a way that does not undermine procedural fairness. One of the difficulties of interviewing the respondent first is that you are putting forward unfounded allegations. So special consideration must be given to the manner in which the allegations are presented.
Putting forward unfounded allegations risks the respondent becoming upset or uncooperative, and may also make it difficult to narrow the key issues to be investigated. These things may increase the time it takes to investigate the matter.
Another problem is that the employer is putting forward allegations without being aware of all the circumstances leading to the alleged conduct. This may undermine the investigation process – if new information later comes to light, the respondent has not had an opportunity to address it. This puts the reliability of the investigation under threat for lack of procedural fairness.
The employer could recall the respondent at a later stage in the investigation, but in the interests of fairness to the respondent and cost efficiency to the business, it is always a better course to interview each person just once.
Another issue is the potential conduct of the respondent after being interviewed. If the allegations are denied, there may be a risk that evidence is tampered with or destroyed, or witnesses are colluded with or threatened. If you have already collected the evidence, there is less risk of this happening.
The need for a strategy
When it comes to the timing of interviewing a respondent, there is no uniform answer for every situation. The best approach is to design a strategy to fit the circumstances. This is just one of the reasons why workplace investigations can be complicated and difficult. With experience comes increased knowledge, which is why workplace consultants are invaluable in navigating you and your organisation through the process.