In the course of a workplace investigation, it is not unusual to encounter a respondent who simply denies the allegations, without offering any further information or explanation. While a simple denial may sometimes be a sufficient response to an allegation, there are instances where there is seemingly more to the story than what the respondent is offering.
In such circumstances, investigators are faced with the challenge of probing for more information without being pushy or overly forceful in their approach. Below are suggested strategies that can be considered where there is a need to draw out more information from a respondent.
- Consider the order of the interviews
At the outset of an investigation, a respondent may indicate a reluctance to cooperate in the process, thereby signally that they may not provide comprehensive or detailed evidence. Accordingly, investigators may wish to consider first gathering relevant evidence from other sources (i.e., the complainant(s) and witness(es)) before conducting the respondent interview. Conducting the respondent interview last can serve two benefits: first, it can streamline the process, in that investigators may not need to conduct a follow-up interview with the respondent if all of the evidence is first gathered and discussed in one interview; second, putting more details to a respondent may increase the likelihood of them providing more fulsome responses. While a respondent may outright deny a general allegation, they may be more willing to elaborate on specific pieces of evidence, such as the timeframe of an alleged incident or the subject matter of a particular meeting.
- Unpack "I don't recall"
Respondents may sometimes respond to the allegations with answers to the effect of, "I don't recall." Such a response is vague, and is not, on its own, a true denial of the allegation. Investigators may wish to probe further to understand exactly what the respondent means by this answer; do they mean that they do not recall the incident, but that it possibly could have occurred as alleged? Or, is the respondent explicitly denying the allegation? It is important for investigators to clearly understand the respondent's answer, in order to accurately weigh the evidence and determine appropriate follow-up questions.
- Ask open-ended questions
Where appropriate, investigators can ask open-ended questions to encourage more comprehensive responses. For example, rather than inquiring about a specific allegation on a particular date, investigators can ask, "Can you take me through what you remember from that afternoon?" Similarly, it may be helpful to end an interview by asking the respondent if there is anything they generally wish to add; this provides them an opportunity to share relevant information which may not have been captured in your questions.
- Call it out
Where a respondent consistently provides answers such as, "I don't recall," "No," or "That didn't happen," it may be helpful for investigators to address this directly, and remind respondents of the purpose of the interview. Investigators can consider saying something along the lines of, "I've noticed that your responses have been fairly brief throughout this interview, and you have consistently responded by simply saying 'no'. I want to reiterate that at this stage in the investigation, I have not made any findings, and this interview is intended for you to share your version of events. If there are any relevant details that you want to provide before I make my findings, please feel free to do so."
- Switch up the interview strategy
If respondents continuously provide brief, vague responses, consider taking a break during the interview, or, if appropriate, ask whether they would prefer to reschedule for another time. It may be that the respondent is simply not in the right headspace to participate in an interview that day. Investigators can also consider offering respondents the opportunity to provide their answers in writing, as some individuals express themselves better in writing, as opposed to verbally.
- Weighing the evidence
Despite your best efforts, some respondents may nonetheless only give you one-word answers. When weighing the totality of the evidence and making your findings, consider the following:
- The credibility of all of the interviewees. An interviewee who provides vague, evasive answers is typically less credible than one who provides evidence in a straightforward manner and/or provides corroborating evidence.
- Avoid findings based on "likeability." Investigators will inevitably encounter a variety of personality types, and it is natural that some interviewees may be more "likeable" than others. However, investigators should be careful to not place too much weight on the friendliness, or lack thereof, of an interviewee. While some interviewees may have a curt or abrupt demeanour, they may nonetheless provide reliable, honest evidence. Investigators should therefore focus on the quality and credibility of the evidence itself, rather than on the person providing it.
- Patterns in evidence. Consider whether the respondent gave more detailed evidence about one type of allegation, and in contrast, was more evasive about another type of allegation. It may be that the respondent's evidence is credible in some areas, but not others.
- The balance of probabilities. Unlike criminal proceedings, workplace investigations do not demand proof beyond a reasonable doubt. Rather, investigators need to simply be satisfied that it is more likely than not (i.e., more than 50% likely) that the allegation occurred. A lack of credible respondent evidence may aid in reaching that threshold and substantiating the allegations.
Obtaining clear, detailed evidence from interviewees can be a difficult balancing act. However, by adopting a balanced and thorough approach, investigators will ensure that their findings are supported by the evidence and legally defensible.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
