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.