What do you do about a reluctant witness, that is, the employee who doesn’t want to participate in your investigation? For guidance, we turned to BLR’s Workplace Investigations: The HR Manager’s Step-by-Step Guide.
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Start with the Handbook
Your employee handbook should have a provision stating that all employees are required to participate in any workplace investigation. If you don’t have such a policy, you should try to add one. It’s a part of every employee’s job to participate fully and honestly in any workplace investigation.
If an employee refuses, that employee’s supervisor should give a directive and order that employee to participate in the investigation. If the employee still refuses to participate, you may have grounds for discipline for insubordination, including termination. Of course, you should first consult with legal counsel to be certain that such a termination doesn’t run afoul of any state or local laws.
Why Is the Witness Reluctant?
First, try to determine why the witness doesn’t want to speak with you. A refusal to participate may occur because a witness either doesn’t want to be perceived as a snitch or because the witness truly fears retaliation. If the witness really doesn’t trust management, doesn’t like to participate, or is otherwise surly and difficult, you need to explain to the witness that he or she has an obligation to participate. Again, that’s easiest when your policies clearly state that all employees have a duty to participate in workplace investigations.
If the employee appears to have a real fear of retaliation, sit down with him or her and try to have as open and honest a discussion as possible. Keep in mind that retaliation could come from the accused, the complaining party (perhaps because the witness isn’t going to provide the testimony that the complaining employee is expecting), from a friend of the complaining party or the accused, or perhaps from someone else in the workplace.
However, also keep in mind that just because someone seems fearful of retaliation doesn’t mean that it’s likely to occur. Sometimes a witness even pretends to fear retaliation as a way to avoid participation in an investigation.
Allegations of harassment? Discrimination? Investigation time? But how many witnesses do you need to talk to? Who do you talk with first? What questions can you ask (and which should you avoid)? Check out Workplace Investigations: The HR Manager’s Step-by-Step Guide.
Do Pursue the Witness
You may have to go to the reluctant witness’s work area to catch the person in a hallway or some other place so that you can encourage him or her to walk with you to your office or to some other private area. If this is truly an important witness, you need to make as many overtures as possible to try to secure his or her testimony.
Perhaps you can get help from someone else in the workforce—maybe someone else in human resources or another manager who has already established a good rapport with the witness and will be able to help you secure his or her testimony.
Play Hardball
If necessary, have the appropriate manager issue an order to the witness requiring appearance for an interview. Then, if the witness doesn’t appear, you can write the witness up for insubordination. This is not the preferred approach, as the witness may just clam up or later claim that the testimony was somehow not truthful because it was coerced.
Nevertheless, because your investigation may later come under scrutiny from outsiders, you need to take every possible step to secure the testimony of all truly relevant witnesses. Of course, if it turns out that that witness’s testimony isn’t necessary, you can make the decision whether to overlook the refusal to participate in the investigation.
You’re the CSI—when it comes to harassment or discrimination investigations, you’re the investigator. Not quite sure how to proceed? Check out Workplace Investigations: The HR Manager’s Step-by-Step Guide.
Do Not Confine the Witness
If the witness is already in your office and gets up to leave to avoid participation, don’t block the employee from leaving. If you try to prevent someone from leaving, you may be accused of false imprisonment and you may be liable for damages if you are sued.
False imprisonment is the nonconsensual, intentional confinement of any length of time (even mere moments) of one or more persons by another. Note, however, that being forced to choose between answering questions or being fired is not false imprisonment.
There is no reason to force someone to participate through intimidation or by trying to lock someone in an office. Simply issue the person an order that he is to answer questions and then, if the employee for fails to do so, discipline, which may mean termination in this situation.
In tomorrow’s Advisor, the tricky question of handling the police when they are also investigating, plus an introduction to BLR’s popular Workplace Investigations: The HR Manager’s Step-by-step Guide.
In a unionized workplace, not mentioned in the article, employees have the right to union representation during any investigatory interview. Respect of Weingarten rights is also an important part of HR.