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Help! I’ve been asked to be a witness in an investigation

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Witnesses to whom I have extended an invitation to meet with me often have questions about the process. They want to know whether they are obligated to participate, what the investigation is about, and what will be done with the information they provide.

Whether a witness is required to participate in the investigation will likely depend on that person’s status with the organization that has requested the investigation. If a current employee, the witness likely has an obligation to cooperate in a workplace investigation. This obligation does not extend to former employees, whom employers or external investigators may wish to interview. There may nevertheless be reasons why a witness may want to participate as a former employee. For example, perhaps the reason the employee left the workplace is connected to the investigation, such that his or her evidence may provide helpful information. Witnesses may also feel a sense of personal obligation in participating when they know that they have important information to provide, without which the investigation would be incomplete. We find that more often than not, former employees are willing to assist in an investigation in providing whatever relevant information they have surrounding the incidents in question.

Witnesses do not generally have the right to a support person during an interview, although some policies expressly allow for this. In some unionized workplaces, by virtue of the provisions of a collective agreement, both parties and witnesses may be entitled to union representation. If this is the case, a witness can avail him or herself of this right. Absent such a provision, and if a witness feels that a support person would be helpful, they should discuss this with the investigator in advance of the interview. A support person cannot be another witness in the investigation. A witness is also entitled to necessary and appropriate accommodations for any disability.

Witnesses often want to know what the investigation is about. As curious beings, this is a natural reaction. There are limits, however, as to what an investigator can tell a witness. The investigator may explain the process, what he or she will do with the information provided, and explain any policies against retaliation for having participated in the investigation. The role of a witness, however, is to provide information — not to obtain information. What we often tell witnesses is that the investigation is not about them; they have simply been identified as someone with possibly relevant information to provide. Having said that, we also ask them to imagine how they would feel if the investigation were about them and whether they would want witnesses told everything being investigated. Usually, the answer to that question is “no.” In summary, a witness is not entitled to know the allegations being investigated. I also recommend that witnesses do not try to “figure out” what the investigation is about. During an interview, witnesses sometimes reply to a question with, “Oh, I think I know where you are going with this.” They may be right or wrong, but they should not expect the investigator to confirm their suspicions. Because an investigator owes a duty of confidentiality to the parties and to the client, the investigator will provide as little detail and background information as necessary in order to obtain a witness’ answer to a question.

At times, it is apparent that a witness has a pretty good idea what the investigation is about. Perhaps the parties involved have had a visible and well-known negative interaction that is not a secret in the workplace. Witnesses have at times told me, “I do not want to take sides.” My response is that I am not looking to them to take sides. All I am asking is that they tell me what they know, heard, or observed.

Another question has to do with anonymity and what will be done with the information witnesses provide. Witnesses are not usually entitled to anonymity and the information they provide may be disclosed. Nevertheless, an investigator will usually only disclose what is necessary in order to conduct a fair investigation for the parties involved in the investigation. Knowing that the information they provide may be disclosed can lead to a fear of reprisal. Organizations generally have policies against reprisal in respect of those who participate as witnesses in an investigation. Any fear of reprisal can be discussed with the Human Resources department and/or with the investigator.

Ultimately, any questions or concerns about the process should be raised with the investigator before or during the interview. Witnesses are an important and integral part of a fair and thorough investigation. Hopefully, once any concerns are addressed, the focus can be on the information the witnesses have to provide, which is often of significant assistance to the investigator.

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