Interview Techniques for Workplace Investigations

Vince Scopelliti - Wednesday, July 24, 2019

In any workplace investigation, there will be multiple competing factors for an investigator to consider. One core issue is developing the appropriate interview strategy.

Investigative interviewing requires careful consideration of the purpose of the investigation, and exactly who will be interviewed. There is also the question of tone - ensuring that the interview remains cordial and does not begin to resemble an interrogation. 

At WISE Workplace, we have a wealth of experience in investigative interviewing, including the best practice interview techniques to bring to the task.  

the purpose of the investigative interview

The purpose of the investigative interview is to glean relevant information about a workplace allegation in a manner that is professional and fair. 

In devising a good investigation strategy, the interviewer will carefully select who is to be interviewed during the process. 

People with first-hand knowledge are the key - not those who simply heard a rumour or were told something second-hand. Such statements constitute hearsay, and can reduce the weight of the evidence and the overall value of the investigation if relied upon. It is important for the investigator to identify and interview those people who were directly involved, or who witnessed a situation first-hand. 

Ideally there will be enough witnesses available to corroborate evidence. If facts such as the identity of an alleged bully can be verified between witnesses, or certain actions can be adequately cross-checked, the resulting findings and report are likely to be sound. 

Having a support person available for witnesses is always recommended. Being interviewed for a workplace investigation can be stressful for any of the parties. The presence of a trusted support person can help to calm the witness.

interviewing or interrogating? 

It is vital to create the right environment for the interview. At a fundamental level, the interviewer should avoid any method of questioning that could be seen as interrogating rather than interviewing.

Keep the tone conversational and allow enough time to develop rapport across the interview. Inviting questions around how the interview will work, plus describing procedural aspects like recording and note-taking can assist in reducing anxiety. 

State the obvious. For example: "This is a difficult situation involving certain allegations in the workplace, and we appreciate your help here today".

Offer the witness the option to stop and clarify any questions and to take comfort breaks if needed. Firing off questions and requiring immediate answers is no way to develop rapport and will not illicit the best information and or evidence. 

Adopting a stern or hostile demeanour is unproductive and can also lead to claims of bias. A professional interviewer should never see themselves as a TV detective with a rough attitude and a light shining in the respondent's face! The interview is not seen as a technique used to extract a confession from a witness. Building good rapport is the key to a quality investigative report that stands the test of time.

high-quality interview techniques 

The experienced interviewer understands how to conduct the workplace interview with transparency and objectivity. While the personal information of others needs to be protected, the witness should be informed of all relevant material relevant to the allegations. Even alarming or distasteful allegations should be dealt with professionally and objectively. 

Building rapport with a witness is essential for effective interviewing. Structured processes such as the PEACE model of interviewing can help interviewers to cover all aspects of a professional interview. 

The PEACE model was developed in the United Kingdom to help investigators conduct the fairest and most productive interview possible. The model provides eight steps that should be undertaken which includes:

PLANNING: Examine what planning and preparation need to occur before an interview.

ENGAGE: Choose methods that assist in building rapport with the respondent, complainant or witness.

ACCOUNT: Gather interviewee accounts in a logical and effective structure. Seek clarification where needed. 

CLOSURE: Complete the interview politely and professionally.

EVALUATE: Review the contents of your transcript and take any necessary next steps.  

Other tools such as active listening and open questions are also excellent ways to gather the best information, without raising problems of biased interviewing - perceived or otherwise. 

Don't rush the witness as they tell their story. Ask open questions, which allow the witness to provide a spontaneous and genuine description of events, rather than being fenced in by closed questioning or unnecessary interruptions.

Mastering the Investigative Interview 

Obtaining first-hand witness evidence by way of interview is essential to uncovering the facts of a matter. However, conducting interviews into serious workplace issues such as bullying and sexual harassment can be a difficult and sometimes a daunting task. 

WISE investigators have mastered key interviewing techniques and have extensive experience in conducting investigative interviews across industries. We have developed a comprehensive guide to steer HR professionals and investigators through the process. Purchase our book Investigative Interviewing: A Guide for Workplace Investigators for the best tips on successful interview techniques.

Uncovering the Steps of an Effective Investigation Process

Vince Scopelliti - Wednesday, June 26, 2019

For many employers, a workplace investigation process can appear quite challenging to navigate. Questions around the actual subject of the investigation, and who is best qualified to carry out this important task, can immediately arise.

The investigation process itself is characterised by a number of important processes that are designed to reduce the risk of negative perceptions and/or potential legal pitfalls at a later date.

We outline proven strategies for understanding and instigating a high-quality investigation process.

By using these, employers have the capability to implement a fair, thorough and professional investigation, from initial complaint management through to the presentation of an accurate and accessible report. 

Following a clear path

When a complaint arises in the workplace, employers might be tempted to launch straight into the fray and 'get to the bottom of things'. Yet such a tactic can be problematic on a number of levels.

First, compliance with existing policies and procedures concerning investigations is crucial, to ensure procedural fairness throughout the process. It can take time to confer with HR, re-read existing internal guides and to make a plan to investigate the complaint in an appropriate manner. 

Each workplace, employee and complaint is unique and employers are reminded to carefully assess their policy compliance obligations before starting down the investigative path.

Secondly, it is vital to ensure that procedural fairness is built into the entire investigative process. The way in which complaints are dealt with must be transparent and fair for all concerned. Results from an investigation process should be reliable. This is derived from robust interview techniques and document searches that are fair and transparent in nature.

A sound investigative process will also ensure the finality of outcomes, leaving no room for doubt. Complainants, witnesses and employers understandably desire a process where finality and clarity are achieved. 

A step-by-step investigative process

Let's take a look at the key steps of an effective investigation. You can find out more about each of these steps in the investigation process in our upcoming series of in-depth articles.

1. Receiving a complaint

It can be confronting for employers when required to deal with workplace complaints. Bullying, harassment, fraud, sexual harassment and child abuse are just some of the serious issues that can arise in workplace contexts. It is crucial that complaints are taken seriously and that actions are carried out in a measured fashion.

Employers should ensure that internal policies and procedures regarding the receipt of complaints are closely followed. The receipt of complaints involving what is known as 'reportable conduct' will additionally activate compulsory reporting regimes. This means that for certain types of alleged misconduct, employers are legally required to report to prescribed external bodies.

2. Establishing terms of reference

At the beginning of the investigative process, the investigator works with the client to define and limit the Terms of Reference (ToR). It is not appropriate to engage in broad-sweeping analyses of all circumstances that might possibly surround the complaint. The investigator and client work with the initial information, to confine the ToR to the essence of the complaint(s) made. An investigation can become too unwieldy if the boundaries of the ToR are vague, hazy or too broad. 

Perhaps most importantly, unclear ToRs can lead to accusations of uncertainty and unfairness for those parties affected. It can make sense to engage an external investigator in those circumstances where complaints, cross allegations and emotions are heightened within an organisation. Often, an objective outside person can provide the clarity needed to get the ToR right.

3. Letters of notification and allegation

Once thorough scoping has taken place, letters of notification need to be made to respondent, complainant and all relevant witnesses. This provides an important opportunity to communicate the nature of the investigation process, as well as the individual's involvement. The letter of notification describes what is being investigated; who the investigator is; the right to request an interview support person; as well as the need for all parties involved in the investigation to maintain confidentiality. 

With a slightly different purpose, the letter of allegations provides a clear description of the complaints that have been made against the respondent. This important piece of correspondence includes the particulars of allegations, any request for supporting documents, pending interview details, the option of having a support person present, as well as the importance of maintaining confidentiality at all times. All correspondence within the investigation should be clear, comprehensive and accessible by the relevant parties.

4. Interviewing techniques

When conducting an interview, the investigator must constantly consider how to maintain transparency and objectivity at all times. Yet, it is also necessary to build a suitable level of rapport with the complainant, the respondent and with witnesses.

One useful tool for running the interview process appropriately is the adoption of an interview framework.

The PEACE model was developed in the United Kingdom to help investigators conduct the fairest and most productive interview possible. With a useful acronym, the PEACE model helps the interviewer to step consistently through the process.

PLANNING: Examine what planning and preparation needs to occur before an interview.

ENGAGE: Choose methods that assist in building rapport with the respondent, complainant or witness.

ACCOUNT: Gather interviewee accounts in a logical and effective structure. Seek clarification where needed.

CLOSURE: Complete the interview politely and professionally.

EVALUATE: Review the contents of your transcript and take any necessary next steps.

Active listening is also a useful tool for interviewers conducting a workplace investigation. This involves giving close and undivided attention to the interviewee, plus being able to paraphrase accurately what has been said. Wherever possible 'open' questions should be asked - those that allow the person to respond in a narrative manner, based upon their recollections. Examples include 'How would you describe the work relationship between Fred and Frank?'.

5. Report writing

One of the most important aspects of a workplace investigation is the final written report. It is relied upon for ensuring compliance with recommendations, detailing any disciplinary actions and can form a defence against future claims. In accordance with Briginshaw, findings made with objectivity and upon the evidence available, are more likely to meet the evidentiary threshold in serious matters. Investigators should clearly determine if allegations are substantiated, unsubstantiated or if evidence is lacking. Being concise, following a logical sequence and ensuring that 'findings follow the evidence' are all important ways of creating a professional, sound final report.

6. Making findings

One of the last and most crucial tasks for the investigator is making findings. It can seem deceptively simple. This evidence was produced; this is the logical finding. Yet there is more to the equation than this.

It is important to present evidence contrary to your findings and to explain why this was less compelling than the preferred evidence. A clear and objective explanation is needed and can certainly be difficult to word at times. Findings should tie back to the analysis and should define which allegations have or have not been substantiated.

An indication of the weighting applied will be necessary, as will the relevance of the evidence in the context of the particular allegations. It should also be clear in the document that reasoning has taken place in the context of the organisation's policies - including whether or not one or more has been breached.

7. The role of the Fair Work Commission

The Fair Work Commission (FWC) provides an opportunity for workers and employers to take their grievances beyond the level of the workplace. The FWC considers an array of work-related issues every day, delivering determinations on matters such as bullying, employment award issues and unfair dismissal claims. Unlike courts, tribunal-type bodies such as the FWC are built to deliver fair, fast and accessible justice.

Yet it is important to remember that all matters will be dealt with in a robust and objective manner according to law. In keeping with the rule of evidence, the FWC will examine final workplace reports closely to determine if sound analysis and findings have been made; for this reason, a defensible final report is essential.

Obtaining professional guidance 

Getting the process of an investigation right from start to finish is critical for the effective and lasting resolution of workplace grievances.

With over 25 years' experience in investigating and managing misconduct, WISE has put together a toolkit with 20 high quality templates and an investigation guide for even the most inexperienced manager to follow.

How to Deal with an Uncooperative Respondent

Vince Scopelliti - Wednesday, May 29, 2019

When conducting investigations in the workplace, senior staff and human resource managers often have to deal with uncooperative respondents. 

Understandably, this can significantly hamper the progress of the investigation. 

WHat is an uncooperative respondent

There are many ways in which the smooth running of an investigation can be negatively affected by an uncooperative respondent. This can arise when: 

  • A respondent refuses to answer questions put to them, meaning that the investigator cannot create a coherent picture of the events or the respondent's perspective.
  • A respondent is no longer employed by the company. This may make it challenging  to even get in touch with the respondent, let alone encourage them to participate in an investigative process.
  • The respondent is out of the workplace on a form of leave (sick leave, stress leave, workers' compensation) that would in some circumstances mean that they are either not medically capable of, or not medically cleared for participation in the investigation process.
  • A respondent intentionally holds up the investigative process. For example, by frequent and consistent rescheduling of meetings, failing to attend work on days when interview sessions have been set up, or otherwise failing to engage in necessary parts of the process. 

what if there is an impact on others involved in the investigation?

It is particularly frustrating to have to deal with a recalcitrant or difficult respondent when other parties to the investigation are adversely affected as a consequence. 

For example, some respondents may seek to intimidate other witnesses with a view to discourage them from participating in the investigative process. 

When dealing with this type of situation, investigators should encourage witnesses to participate in the process by confirming that their involvement remains confidential, and by redacting sensitive information such as names or identifying details when providing documents to the respondent. 

Further, witnesses should be advised that their involvement in the investigative process cannot and will not have any adverse impact on their employment. 

can an investigation occur without the respondent's involvement? 

When faced with a situation where a respondent is failing to cooperate, an investigator can proceed without their involvement in certain circumstances. 

Crucially, it is important that an investigator is able to demonstrate that the investigation proceeded in accordance with all requirements of procedural fairness. 

In particular, this means that there must be a document trail confirming all the efforts that have been made to engage with the recalcitrant respondent. There must also be evidence that attempts have been made to explain to the respondent that their non-involvement may impact but will not stop the investigation process. 

The intention here is to be able to demonstrate to a court, tribunal or other third-party reviewer that the investigator took all reasonable steps to include the respondent and their point of view in the investigation. 

No presumptions or assumptions can be made about the evidence used to determine the substantiation of allegations, if a respondent does not participate in the investigation process. 

how can a respondent be encouraged to participate?

Although some respondents simply will not cooperate, investigators should provide a raft of different options to encourage respondents to meaningfully engage in the process.  

These options include:

  • Encouraging respondents to provide written responses to a series of questions. This is likely to work best for the respondents who are nervous about incriminating themselves during interviews, or otherwise concerned about the investigative process itself. 
  • Reassuring respondents that, despite the allegations facing them, they are entitled to both confidentiality and the assurance of procedural fairness. This may alleviate the concerns of some respondents who feel that they may not be offered a fair right of response. 
  • Reminding a respondent of the entitlement to have a support person present during an interview if required. 
  • Reassuring a respondent that there is an opportunity to provide comment, feedback, additional information and/or evidence on any findings if considered necessary for clarification. 
  • In certain circumstances, it may be best to advise respondents that external investigators have been engaged to facilitate the investigative process. This is likely to be most appropriate in situations where the allegations are particularly serious, or where there is some concern that an internal investigative process may not be completed objectively. For example, if the other parties involved in the investigation are in senior positions or are close to the investigators.  

For more detailed information on conducting interviews, you can purchase a copy of our book, Investigative Interviewing: A Guide for Workplace Investigators. If you're conducting a workplace investigation and need assistance, contact WISE Workplace today. 

Legal Issues When Conducting Workplace Interviews

Vince Scopelliti - Wednesday, August 29, 2018

When a workplace investigation has to be conducted, the most valuable information will generally be obtained through interviewing the staff involved in the incident and any witnesses. This information will play a critical role in determining what has happened or who or what was responsible. 

In order to obtain relevant and reliable information from the parties involved, good communication skills, an eye for detail and the ability to think on your feet is required. However, it is equally important to remember your legal obligations when interviewing staff.

legal issues

In conducting an interview process, key legal issues include:

  • The creation of statements 
    When an interview is conducted, a statement recording the comments made during the interview must be prepared and provided to the interviewee for review and, if the contents of the statement are agreed upon, signature. 
  • Audio recordings
    The laws on the creation of audio recordings differ in each Australian state. Generally speaking, if a person is advised that they are being recorded and they do not explicitly object, it is acceptable to continue with an audio recording. It is best practice to seek their explicit approval once recording has commenced. It is important to bear in mind that a transcript of the recording must be made available to the interviewee upon request. 
  • Support person
    Anybody involved in a workplace investigation, but especially the person against whom allegations have been made, must have the opportunity to have a support person of their choice present during each step of the investigative process, particularly during the interview. Witnesses have to be informed of this right in advance, in order to provide them with the opportunity to find a suitable support person.   

Procedural fairness and privacy

Perhaps the most important aspect of any workplace interview is ensuring that the process is conducted in accordance with the rules of procedural fairness. This includes:

  • The complainant and the respondent have the opportunity to provide their entire version of events and to have a support person present. 
  • The respondent is advised of the particulars of the allegations against them, so that they can respond in detail. 
  • The respondent is advised of their rights in relation to the investigative process.
  • Proceedings are not delayed unnecessarily.
  • The respondent has sufficient time to prepare for the interview process. Best practice is to allow at least 48 hours' notice but preferably more, depending on the complexity of the particulars. 
  • All relevant witnesses are interviewed.
  • Exculpatory and inculpatory evidence is taken into account.
  • All evidence is considered in an unbiased and impartial manner. 
  • No finding of guilt or otherwise is made until after all parties have had the opportunity to participate in the interview process and had the opportunity to respond to the allegations against them. 

All parties involved in the investigation are entitled to privacy. Witnesses who have disclosed information in confidence, may be intimidated by the fear of victimisation or backlash. This means that information divulged during the interview process is to be kept strictly confidential, unless it is absolutely necessary for the resolution of the dispute that it be shared beyond the immediate investigative team.

tips for successfully conducting an interview

In addition to taking the above steps, inexperienced interviewers may wish to consider obtaining specific legal advice, depending on the situation and the allegations which have been made. 

The interview process should always be undertaken from the perspective that only information which is collected fairly and decisions which are made in an unbiased manner will support disciplinary or administrative action against any employee. 

If you dismiss an employee or take disciplinary action against them without affording procedural fairness and establishing the relevant facts, it is possible that Fair Work Australia or other relevant tribunals may find the action was harsh, unjust or unreasonable in the circumstances. 

An investigation may be costly and time consuming, however the consequences of not conducting one may be even greater. If you need assistance in conducting investigations and undertaking investigative interviewing, contact WISE Workplace today, or purchase our 'Investigative Interviewing Book'.   

Improving Your Investigative Interviewing Skills

Vince Scopelliti - Wednesday, March 21, 2018

To any outsider, the job of investigative interviewing seems fairly straightforward - questions are asked and then answers are provided. Yet as we know, the job of interviewing parties in the course of a workplace investigation can be anything but simple. 

For example, the investigative interviewer must ensure procedural fairness at every step along the investigative pathway. And this raises other questions, such as can the venue of the interview impact upon fairness? Why is building rapport a key element of investigative interviews? Should I audio record?

With challenges and variables scattered throughout most investigations, it is necessary for interviewers to be skilled in the core techniques required for fair and productive outcomes. A good workplace investigator never stops refining the skills of the trade.

THE interviewing basics

Procedural fairness requires an investigative interviewer to approach the task with transparency, objectivity and care. For example, any notable bias in the way questions are asked could taint the results of the investigation. It is also essential for the interviewer to explain clearly to the witness the 'what, why and how' of the interview process before questioning begins.

Building rapport is an essential skill when conducting an effective investigative interview. Rapport is the connection created to ensure an understanding of a person's thoughts and feelings, so that effective communication can take place. 

An interviewer might offer a choice of seating, pour some water, ask about the weather outside - just as examples. The right words and actions will be gleaned from the individual characteristics of the witness. Such simple and polite techniques at the commencement of the interview can go a long way towards allaying fears and creating a more comfortable space for questioning. 

Similarly, choosing the right venue can have a surprising effect on the overall atmosphere and quality of proceedings. Questions one might ask oneself as an interviewer include: Is it appropriate to speak with this particular witness on-site? Will we have sufficient privacy? Is there a basic level of comfort? An inappropriate venue for the investigative interview can cause unnecessary distractions and discomfort; neither of which assist in producing high-quality evidence. 

to audio record the interview or not? 

One key issue to consider is this - will you record the interview or take a statement, or simply take notes? An audio recording has obvious advantages, such as providing a word-by-word account of the interview. It is, however, vital to research any particular legal requirements within your state or territory about the need to obtain consent from the interviewee to record the conversation. An audio recording of the investigative interview should demonstrate a strong and professional structure to the interview, as well as a fair approach taken to the witness. When and how to record an investigative interview can be a tricky variable to consider, and at times might require expert advice.

the peace-ful investigative interview

In the 1990's, a selection of British law enforcement officers came together in order to find a better approach to investigative interviews. They identified the need for a strong but flexible alternative to current questioning techniques. The PEACE model of interviewing was born, and it has proven invaluable to investigative interviewers. 

Five key concepts make up the acronym:

P - preparation and planning - Do you have a good list of potential questions and a thorough understanding of the scope of the investigation?

E - engage and explain - Have you built rapport, explained all procedural issues to the interviewee and provided an opportunity for questions?

A - account, clarify and challenge - Have you allowed the witness to answer responses fully, without bias or suggestion? Have you sought to clarify concerns and challenged any discrepancies in a professional manner?

C - closure - Did the witness have an opportunity to ask, clarify and add further to the interview where appropriate? And if so, have you explained any next steps and thanked them for their time?

E - evaluation - In listening to or reading back the interview, how would you evaluate the substance, quality and fairness of the process? 

The PEACE model is a great tool for mapping out key aspects of an investigative interview, thus ensuring that nothing is missed in your witness statements. 

suggestibility and free recall

Psychologists consider that every person will have a particular level of suggestibility, which can change across their lifespan. Suggestibility is the extent to which we can be persuaded to 'fill in' our memory through the suggestions of another. Children for example are particularly vulnerable to such prompting in an interview setting. 

Psychological concepts such as free recall demonstrate that memory can be affected by factors such as the timing and positioning of details as they are laid down as memories. Investigative interviewers need to take great care not to ask questions in a way that might sway or alter the facts as provided. 

Conducting investigative interviews is almost always a challenge. For more tips on how to effectively undertake interviews, purchase our book Investigative Interviewing: A Guide for Workplace Investigators, or alternatively, we provide on-site training in investigative interviewing, which can be tailored to the needs of your organisation.