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Firing 101 Part 2—Investigate Before You Terminate.

Firing an employee is a serious step. You may want to conduct an investigation to be sure of your position. In the second video of the Firing 101 series, Steve Bruce shares the key questions to ask. Look out for the next videos in our series: “Audit for fairness,” and “Let a group decide.”

SB: This is Steve Bruce for the HR Daily Advisor. This the second video in our Firing 101 series—Investigate Before You Terminate.

Firing an employee is a serious step. You may want to conduct an investigation to be sure of your position.

Here are the key questions to ask:

First, is an investigation necessary? If you have clearly established that the employee has committed an offense for which termination is the company’s standard response, you may not have to investigate further. However, an investigation is indicated when you need to determine whether the action prompting the termination actually happened, or when facts are in dispute.

It may also be wise in certain other cases, to show that the organization was acting responsibly by giving the employee the benefit of the doubt.

Do you need attorney-client privilege? If you investigate without consulting your attorney, you may have to disclose the results of the investigation during “discovery” if there is lawsuit. In fact, in some cases, information from an employer’s investigation reports has provided an employee’s attorney with a blue print for a successful suit.

However, if your attorney directs the investigation, you may be able to keep the results confidential because of the attorney-client privilege.

 

Who will conduct your investigation? Investigations may be conducted by the managers involved, representatives of the HR department, or members of the security team. In some cases, an outside attorney or investigator may be used.

When should you investigate? Once you decide, the quicker the better. The longer you wait, the more likely that memories will dim, stories will change, witnesses will compare notes, and evidence will be moved or disappear, and    you will give the appearance of not caring.

What methods will your investigation require? In addition to interviewing those involved and witnesses, you may wish to use other sources of information, for example: ?  Records, logs, diaries , correspondence, notes, email, voicemail, videotapes,  surveillance footage, searches,  and physical evidence.

Whom should you interview? Balance the need to be thorough with the desire to maintain confidentiality and the need to keep interruptions and productivity loss to a minimum.

First, talk to witnesses or others with direct involvement. If they refer you to others who can likely offer more information—information you need—then follow the trail another round.

It is generally a good idea to talk to witnesses suggested by the accused party. If you don’t, you’ll look unfair in court.

Before you start interviewing witnesses, make up a list of questions. A consistent set of questions makes it easier to compare answers, and helps ensure that you don’t forget any important questions.

However, each witness may have a unique contribution to make, so as you interview, tailor your questions, and don’t hesitate to probe a little deeper if necessary.

Here are some general guidelines for good investigative interviews:

  • Remain objective. Treat complaints as valid until you establish otherwise.
  • Treat each incident separately.
  • Maintain a need-to-know basis—limit access to information.
  • Inform witnesses that the investigation is confidential.
  • Do not unnecessarily disclose information to witnesses.
  • Try to avoid witnesses whom you doubt will maintain confidentiality.
  • Do not promise absolute confidentiality.
  • Remember that failure to keep the investigation confidential can lead to defamation or invasion of privacy claims.
  • Finally, be careful to take good notes as you interview.

In interviewing the employee:

  • Review the situation which may result in termination.
  • Determine the employee’s side of the story.
  • Get specific details of the incident or incidents.
  • Determine whether or not there were witnesses.
  • Determine whether or not the employee spoke to anyone else about the incident.

In interviewing witnesses:

  • Remain objective.
  • Determine whether or not the witness observed the situation.
  • Phrase questions so as not to give unnecessary information. For example, say “Were you present in the executive suite at noon on February 12 and if so, what did you see?” rather than, “Did you see where Sandy mercilessly beat up Jerry and threw the desk through the office window?”
  • Determine or confirm when and where the incident occurred.
  • Determine in detail what happened, who was standing where, who did what to whom, and so on.
  • Determine what other witnesses were present.
  • Determine whether or not the employee has spoken to anyone else about the incident.

Then gather any additional pieces of information you may need, such as:

The employee’s work record. You would like to know what sort of employee this individual has been. Check length of employment, performance reviews, promotions and positives, and negatives or past discipline.

The organization’s rules and policies. Find out what policies and rules apply to this situation. If the employee is accused of breaking a rule, find out where the rule is stated, and how the employee would have known about it.

Ascertain what action was taken in other similar situations. If no other employee has been terminated for the same offense, tread carefully.

Your investigation is complete, but you are still not ready to make a decision. The next videos in the Firing 101 series are “Audit for fairness,” and “Let a group decide.” For terminations and for all your HR challenges, we recommend HR.BLR.com

This is Steve Bruce for the HR Daily Advisor.