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Interviewing and Dealing with Difficult Witnesses
While you’re here, you may wish to attend one of our upcoming workshops:
Who should you believe? This course is for anyone who has investigated allegations but struggled to make a finding. Learn about the science of lie detection, which approaches work and which don’t, and valuable tools to assist you in making decisions. Investigators will leave confident in making difficult credibility decisions. Participants will be provided with comprehensive materials explaining these concepts and tools to better support them in their investigative practice.
I recently conducted a workplace investigation that included an allegation that an internal workplace investigation was unfair. Several witnesses who were interviewed as part of the internal investigation had provided evidence that was favourable to the complainant, but neither party to the internal investigation was provided with an opportunity to respond to this witness evidence in a follow-up interview. The complainant said that this meant that the internal investigation was unfair, and that the discipline imposed on them at the conclusion of the internal investigation was improper.
In our firm, follow-up interviews, sometimes referred to as “reply interviews,” are a key component of the investigation process. Therefore, following this investigation, I took some time to consider why the follow-up interview is such an important component of a solid investigation process.
The “four pillars” of a solid investigation1
Our investigations are guided by what we call the “four pillars” of a solid investigation. These pillars are fairness, thoroughness, timeliness, and confidentiality. The follow-up interview is a component of the investigation process that is key to both the fairness and the thoroughness pillars of a solid investigation.
Fairness and thoroughness
During an investigation the complainant is typically interviewed first, followed by interviews with any witnesses and the respondent. Witnesses are those individuals who were identified by either party as potentially having information that is relevant to the investigation. The respondent is interviewed after they have been provided with the details of the allegations against them.
The sequence of interviews will depend on the circumstances of the case. Sometimes, investigators in our firm will interview witnesses identified by the complainant before interviewing the respondent. This sequence can be more efficient if it means that the respondent can reply to all the evidence gathered during their initial interview and there may be no need to conduct a follow-up interview with them. When interviews are conducted in this order, any additional witnesses identified by the respondent would be interviewed following the respondent. For reasons noted below, these additional witness interviews might lead to a follow-up interview with one or both parties.
During the initial interview phase of a typical investigation, it is not unusual for an investigator to collect information that is damaging to one or both parties, and that contradicts their information. If the investigator intends to rely upon this information when making findings of fact against one of the parties, then, in the interest of fairness, that party should be advised of the existence of that information and be provided with the opportunity to respond to it. It is likely not fair for a party to see for the first time in an investigation report that the investigator relied on damaging or contradictory information when making findings against that party, when they were not provided with the opportunity to respond to that damaging or contradictory information. Even more unfair and further problematic, because it would also mean that the investigation may lack thoroughness, would be a situation in which a party had relevant information to share with the investigator that could explain the damaging or contradictory information, but were not provided with an opportunity to do so during the investigation.
When to conduct follow-up interviews
To ensure both fairness and thoroughness, investigators will generally need to conduct a follow-up interview with one or both of the parties in the following circumstances:
- Unless the respondent has admitted to the allegations, or denied them outright, a follow-up interview will normally be the first opportunity for the complainant to hear the respondent’s version of events. While it is generally not necessary to review all the respondent’s evidence with the complainant, in circumstances where the respondent has provided an alternative version of events to the one provided by the complainant, this version should also be reviewed. This is important because the complainant may provide information that challenges the credibility of the information offered by the respondent. Alternatively, the complainant may have difficulty refuting the contrary version of events provided by the respondent, and the investigator may need to consider this when assessing the credibility of the complainant’s allegations. If a party modifies their original information during the follow-up interview, this can also impact the investigator’s overall assessment of the party’s credibility. In other cases, the party can provide an explanation for the new information, and this can serve to reconcile any discrepancy between their information, and the information gathered during other interviews.
- Any information that the investigator collects in the investigation which contradicts evidence provided by a party, and which the investigator intends to rely upon in making their findings, should be put to the party and they should be provided with an opportunity to respond. This includes evidence from another party to the investigation, but also witness evidence, documentary evidence, and any other evidence that may be gathered during the investigation, such as video evidence, text messages, photos, etc.
- If after witness interviews, an investigator gets a sense that the information gathered generally weighs against one party, they might take the opportunity to return to that party and ensure that there is no additional evidence they wish to provide in support of their version of events.
- If after reviewing all the evidence collected during the investigation, the investigator notes that there are gaps in the evidence gathered, which can happen, particularly in investigations with many allegations, the investigator should follow-up with the parties to fill the gaps. Sometimes, when reviewing their notes, an investigator will also notice that they have not obtained a direct response from the respondent to each of the specific allegations. When this happens, the investigator should follow-up to collect this information before preparing the written report.
Follow-up interviews typically involve the review of discrete information and the asking of very direct questions on specific points for clarification. They are not normally as lengthy as the initial interviews. It is not always necessary to conduct follow-up by way of a second interview. Depending on the nature of the information requiring follow-up, there can be opportunities to conduct follow-up by questions posed by email. However, it is recommended that email inquiries for follow-up be reserved for clarification purposes, and that second interviews be conducted where the follow-up involves a review of contradictory evidence with the party.
Follow-up interviews with witnesses are rare, but they are necessary on occasion. This type of follow-up might occur where the investigator goes back to a party, who then provides additional evidence that contradicts the evidence provided by the witness.
For additional insights on the topic of fairness in workplace investigations, I invite you to read my colleague Bruce Best’s blog on Fairness in investigations, dated May 11, 2021.
1 Janice Rubin and Christine Thomlinson, Human Resources Guide to Workplace Investigations, Second Edition (Toronto: Thomson Reuters, 2018).
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