Alcohol and work events often don’t mix well. Some know this from personal experience. Others, like us, are called upon to investigate allegations arising from work events at which alcohol and “good times” were flowing freely.  It will come as no surprise that, as workplace investigators, the issue of alcohol consumption and intoxication pops up with some frequency in our work.

The role that alcohol plays in workplace investigations varies. Sometimes, the respondent is alleged to have acted inappropriately after having one (or more than one) too many drinks (e.g. grabby hands and unwanted smooches). Or it may be that the complainant admits to remembering only brief flashes of an alleged incident because of having had too much to drink. Other times, all the parties and witnesses have fuzzy memories after a solid night of drinking.

In our experience, it’s best to address the “booze” question head-on in these matters; otherwise, it may call into question the work of the investigator, how reliable the evidence was that they collected, as well as their analysis. In this blog, we address how we go about doing this.

When does the investigator know that alcohol may be relevant?

Typically, the investigator will know that alcohol may be a relevant factor because a party or a witness will raise it. They will either comment on their own alcohol consumption or intoxication, or more commonly, that of others. It may even be squarely addressed in the complaint document itself.

In some cases, however, alcohol is not mentioned. The context in which the allegations arose will dictate whether it’s appropriate for the investigator to ask about alcohol (it’s obviously not a question that needs to be asked in all cases). For example, questions about alcohol do not need to be asked if the allegations stem from a meeting that took place at the office during the day; unless told otherwise, we assume (hope) that alcohol is not being consumed during such a meeting.

However, one’s “spidey sense” should kick in when the allegations stem from events that are more social in nature; for example, company parties (especially holiday parties), retreats, cocktail receptions, and other off-site events such as after-work dinners. In these scenarios, a chat with the interviewees about alcohol may be in order.

How is alcohol potentially relevant?

Often, alcohol consumption can be a factor that an investigator considers when determining the credibility or reliability of a party. For example, an investigator may find that a respondent downplayed how much they had to drink, which has an impact on their credibility. Or, a party may admit that their memory was affected by how much they drank, which may result in the investigator finding that the party’s evidence was unreliable.

The investigator may also consider alcohol consumption and intoxication when determining whether, on a balance of probabilities, the respondent engaged in the alleged behaviour. For example, think about a respondent who, at the company’s holiday party, was seen by several witnesses drinking heavily, pulling his female colleagues onto the dance floor, and generally acting erratically throughout the course of the night. The strength of that evidence may lead the investigator to conclude that it is more likely than not that the respondent did, in fact, grab his co-worker’s bum while on the dance floor during the party.

Finally, in more difficult cases involving sexual violence, alcohol can play a role in determining whether the complainant had the capacity to consent to the sexual activity at issue. This involves a specific legal test that is best left for another blog, but for now, let us make clear that there is sometimes a difference between drinking in excess and being so intoxicated that a person lacks the ability to consent.

What questions should be asked?

As workplace investigators, we do not have the ability to collect evidence on the amount of alcohol in a person’s bloodstream at the time of the events in question. Indeed, it is very rare for that evidence to exist at all when the events occur in a workplace. Therefore, we must probe the issue of alcohol consumption and intoxication by asking questions. Here are some that we often use when alcohol is potentially at issue:

• Did you drink any alcohol?
• How many drinks did you consume?
• What did you drink?
• Over what time?
• When did you get to the event? When did you leave?
• How did you get there and how did you leave?
• Did you eat anything before or during the event?
• How did you feel?
• Did you feel intoxicated?
• How did you feel the next morning?
• Do you think the alcohol affected your behaviour?

When asking a party about their intoxication level, we may use a scale (for example, “0” being stone-cold sober and “10” being passed out). This helps us to compare the evidence of one person versus another. It is really important that when asking these questions, the investigator does so in a neutral fashion. The investigator must be sensitive to the fact that people are often embarrassed or ashamed about their alcohol consumption, particularly when it becomes relevant in an investigation. The investigator’s tone and demeanour when probing this issue should be strictly professional and not “judgey.”

We would also give a party the opportunity to comment on any evidence we heard from others regarding alcohol consumption or intoxication. For example, a witness may say that the respondent was intoxicated and provide evidence to support why they thought that. They may give evidence about how much the respondent consumed and/or the respondent’s behaviour (e.g. slurring, saying “I love you, man” repeatedly). In fairness to the respondent, we would allow them to comment on any such evidence.

Finally, we may also ask a party who admits to drinking alcohol, whether they think that what they consumed could have had an impact on their ability to accurately recall the events at issue. We do this when a party’s version of events contradicts that of the other interviewees or they are having difficulty recalling evidence. The question gives them an opportunity to explain why their evidence may be different from the others or why they may have gaps in their memory. In some cases, we may also ask whether they ingested any other substances that could have affected their recall.

What findings can an investigator make?

Here are some examples of findings we would anticipate an investigator making in cases involving alcohol:

• A party has difficulty remembering the events of the night and the investigator finds, based on all of the evidence, that the party consumed nine drinks in two hours and was stumbling around. Based on these findings, the investigator goes on to find that the party’s evidence was unreliable.
• The investigator finds that the respondent had two glasses of wine over the course of five hours and that no one noticed anything unusual about her behaviour. The investigator decides that the respondent’s consumption is not relevant in determining whether the events at issue occurred.
• The investigator finds that the respondent had at least 10 drinks, rather than the “couple of drinks” that he admitted to consuming. The investigator also finds that despite the respondent’s evidence to the contrary, several of these drinks were shots of tequila. The investigator relies on this finding in determining that the respondent was not credible.
• Both parties consumed so much alcohol that neither one’s evidence is reliable, and the investigator cannot determine with any specificity what exactly occurred.

Investigating cases where alcohol (and other intoxicating substances) may be a factor are among the most difficult an investigator does. It is critical that the investigator plans ahead when conducting interviews where the consumption of alcohol or intoxication is or could be at issue. We hope that the information in this blog helps with that planning.

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