Getting off on the Right Foot

How to Cover Essential Rights in an Interview

Covering the essential rights of a person in an interview is crucial to procedural fairness. If the interviewee is not made aware of their rights from the outset, anything that they may say during the interview may be viewed as being lacking in procedural fairness and of limited value. Or worse, the interviewee’s statements may be entirely discounted. This may be especially true if there is a subsequent claim for unfair dismissal, a claim of discrimination, or other litigation.

Basic steps

Whether you are interviewing a complainant, an alleged perpetrator, or a witness, the same basic information needs to be given to the interviewee at the beginning of the interview. There is no doubt that an audio recording of an interview is the best way to document what has been said. But before a recording device is switched on, there are a number of steps to be followed.

If possible, meet at a place that is private so that confidentiality is preserved. If this is not possible, take steps to ensure that other employees can’t see or hear the interview. Explain to the employee the purpose of the meeting. For example, “You have made some allegations about employee X, and I would like to discuss those allegations in detail so that we can investigate the matter.” It is always better to conduct the interview in person, as it gives you a chance to assess how the interviewee reacts to certain questions.

Regardless of whether the interviewee is the complainant or the alleged perpetrator, they should be told that complaints or incidents of the type that you are investigating are taken seriously, and there may be some potentially serious consequences for the person against whom the allegation is made. Ask the interviewee to give honest responses to all questions. Seek the interviewee’s permission to audio record the interview and tell them that they will be asked to check and sign a transcript of the recording. If the interviewee agrees, commence the audio recording. In some cases, the interviewee may refuse their consent. You should seek advice about this prior to commencing the interview.

After audio recording has commenced

Once you have commenced recording the interview, you need to ensure that you cover various formalities:

• State the time and the date. 
• State that it is a recorded interview between the parties, and identify all parties by getting each person to state their name (this includes any support person and any other witnesses). You must ensure that you clearly identify which person is being interviewed. 
• Reiterate that a transcript of the recording will be produced and the interviewee will be asked to check it for accuracy. 
• Inform the interviewee that the interview is not compulsory, that they can have a break at any time, and that they can have a support person present. If they elect not to have a support person present, they can change their mind about this at any time. The interview can be stopped to arrange a support person. 
• Tell the interviewee that what is said in the interview is confidential, although the person against whom allegations are made will be informed of the allegations so that they can properly respond to them. 
• If anyone is to be provided with a transcript, for example the human resources manager of the organisation, tell the interviewee that this will happen.
• To preserve the integrity of the investigation and the confidentiality of all parties, tell the interviewee that they are not to discuss the interview or allegations with anyone, except their union representative or support person. This is a key aspect of the introduction, as confidentiality can make or break an investigation. Once these things have been covered, you are satisfied that the interviewee has understood what you have said, and you have answered any of their questions, you can commence the interview proper. 

Getting introductory matters right in interviews is a key aspect of procedural fairness, and ensuring that the essential rights of the interviewee have been acknowledged and met. It is a crucial foundation element for a successful interview.