A Short Guide to Conducting Interviews in Workplace Harassment Investigations

The most common and often most important evidence in workplace investigations are statements from the parties (the complainant and respondent) and witnesses.

Preparing for Interviews

The person or person(s) selected to do the investigation should be objective. They should not be the alleged source of harassment and should not be under the direct control of that person.

The investigator should be familiar with circumstances surrounding the situation including:

• Details of the allegations (sometimes some or all of these are not obtained until the interview with the complainant).
• Details of the reply to the complaint (again, some or all of this information will be obtained in an interview with the respondent).
• The parties’ work positions and their working relationship.
• Internal Policy and Procedures, Collective Agreements (where they exist) and applicable Human Rights and Occupational Health and Safety legislation.

Questions should be prepared in advance. However, one question will lead to another so further probing and questions must be anticipated.

Best practice is to conduct interviews in neutral locations private from the view or knowledge of other parties and witnesses, for example, a meeting room outside the workplace. However, this is not always practical considering time frames and possible workplace disruptions. On the shop floor is never a good idea but a private board room in the human resources office might be a good compromise. Avoid situations where interviewees sit in the same waiting area or meet on the way in or out of the interview.

Interviews are always with one individual. However, parties and witnesses are entitled to a representative or supporter. A representative might be mandatory in a unionized environment. The representative or supporter is not to answer questions or interfere with the process. If they wish to discuss an issue with the interviewee, the interview should be halted, so that they can speak briefly in private, before continuing.

Any special needs, including an interpreter, should be accommodated.

The Interview

Put your subject at ease. It’s an interview not an interrogation. Before formally beginning, greet your subject pleasantly. Engage in small talk; the weather or the subject’s commute to the interview location are good ice breaker topics.

As an introduction, indicate your authority to conduct the interview (reference your policy, procedures, practices etc.), and note the location, date, time of interview, and attendees.

The first questions should be about the subject: their title, time with the employer, reporting relationships and where appropriate, working relationships with the parties. By letting subjects talk about themselves, comfort and rapport is established.

Questions should be related to establishing the material facts related to the allegations.

Further tips in conducting an interview include:

• Always use plain language and characterize events and issues in a neutral way.
• Start with open-ended questions.
• On most occasions, you will find your initial open-ended question effective. However, sometimes you have to progressively probe deeper. For example, if you ask, “Please tell me about the staff meeting the Tuesday after the long weekend in May,” the subject will likely immediately tell you about the dispute between the complainant and the respondent and that the subject was shocked when the respondent referred to the complainant as “bitchy.” If not, you might probe by asking, “Was there any interaction in the meeting that concerned you?” And progressively: “Was there a dispute between the complainant and respondent?” “Did you hear anyone use the term bitchy?” And finally, “Did the respondent use the term bitchy in reference to the complainant?”
• Practice active listening where appropriate: paraphrase, ask witnesses to repeat or clarify points. Probe for further information.
• Do not indicate or show approval or disapproval.
• Attempt to determine whether any coaching or collusion has taken place. Sometimes you will find that the workplace grapevine means that witnesses have discussed details of the case prior to the investigation. Take note of this. Make sure the interview focuses on what the subject actually witnessed and not what the subject was told by another person.
• Opinions and conclusions are of weak or no value, e.g. “The respondent was angry.” You need to probe to see how the witness reached that conclusion by asking what the respondent said or did to indicate she or he was angry.
• End the interview by asking, “Is there anything else you would like to say?”
• Sometimes facts and evidence arise that require second interviews, usually with either the complainant or respondent but sometimes with witnesses too.

Interview Record

Records of all interviews should be retained and maintained.

Digital audio recorders are relatively inexpensive and have the advantage of playback, track marking (noting the location of particularly relevant statements) and the creation of digital files, which can be stored electronically.

Recording statements by hand or with a laptop or computer are acceptable alternatives. Each method has advantages and disadvantages.

Handwritten or typed notes are not going to include every word. (The notes should reflect the actual words and language of the witness. Use the first person, “I heard the respondent yell…” not “the witness recalled that the respondent yelled…”)

These methods are not as complete as a digital audio recording. However, if done well, they can be just as accurate, especially where the interview subject reviews the notes post-interview, corrects any inaccuracies and signs and dates the document. On the other hand, having a subject listen to an hour long digitally recorded interview to confirm its accuracy doubles the time for the entire process.

Audio recordings will include distracting and irrelevant noises, throat clearings, chair scrapings, etc. Sometimes meaning is lost in audio only. A note-taker can interpret body language and sometimes more accurately capture what a subject is conveying.

Other Issues

Employee witnesses should be required by policy to cooperate with any internal investigation. This should be explained to an uncooperative witness if necessary, by Human Resources or a member of senior management.

In some cases, a witness will attend as required but then deny knowledge of incidents that they are known to have witnessed. This can occur when a witness is reluctant to get a fellow union member in trouble. Again, the policy requiring cooperation can be cited. It also sometimes helps to explain to the witness that getting all the facts on the table will lead to the best outcome and will decrease the likelihood of other actions, e.g. grievance hearings or civil suits where the witness may be compelled to testify under oath.

Caution should be used before engaging outside witnesses, including former employees, clients and customers. The investigator should do so only when necessary and only with approval of senior management. Of course, outside witnesses are not bound by internal policy and may choose not to cooperate.

Witnesses are selected based on a review of the parties’ positions and other evidence gathered as the investigation goes along. The parties may identify witnesses, but it is the investigator who decides who to interview based on the material facts that need to be proven.

Sample Statement