A workplace investigation can be an intricate puzzle of contradictory stories, different perceptions and a volume of documents. We rely heavily on witness participation – and therefore witness trust – to fully understand what happened and sometimes, who to believe. In non-statutory assignments, we seldom have the power of subpoena and we depend heavily on voluntary participation. Without subpoena powers, we need to find other ways to gain witness trust and open the door to full and honest participation.
Once witness trust is gained, the evidence gathered without subpoena can often be more fulsome and generally more helpful than that gained by subpoena. Better quality evidence leads to a more dependable outcome.
Our recommended approaches for gaining trust from a reluctant witness include:
1. Never – and we mean never – mislead the witness about the process, or anything else!
A lawyer has a duty to carry on the practice of law and discharge all responsibilities to clients, tribunals, the public and other members of the profession honourably and with integrity. (Law Society of Manitoba, Code of Professional Conduct, Chapter 2)
This is our Number 1 for a reason. As lawyer investigators, our duties of honesty and candor to the public generally, and the institutions and witnesses we deal with, need no explanation.
Witness trust is earned. To earn that trust (and therefore participation), some investigators may be tempted to tell a reluctant witness what they want to hear. Read on for ways to earn trust without doing that.
2. Identification and proportionality
Workplace investigations often deal with sensitive topics. Witnesses may be fearful of repercussions for participating in an investigation. Throughout our process, we maintain a constant focus on what actually needs to be shared for reasons of fairness, quality of the evidence, and for a robust finished product. At every turn, consideration should be given to witness de-identification, generalizing evidence and other ways to protect privacy, so far as possible.
3. Don’t make promises you can’t keep
We are often asked by parties and witnesses to keep their identities a secret, but we are seldom in control of that. Once we submit our report to the employer or institution, our involvement is usually at an end. A skillful investigator finds a way to encourage participation without over-promising on something they have no capacity to deliver.
4. Respect the witness by giving as much information as you can
All witnesses crave – and deserve – as much process information as possible. Many reluctant witnesses get reassurance from a better understanding of the process and how they fit into the process. How much information you can give in your role varies from case to case. Within the limitations of your process, the information most witnesses want to know includes:
- As applicable, what it means that we are an external vs. an internal investigator;
- What will be done with the information provided;
- A description of workplace policies against retaliation for participating in an investigation;
- The identification of a person within the institution who can answer any further process questions;
- In the case of a non-party witness, that the investigation is not about them;
- Any known de-identifying procedures relating to the final report.
5. Reinforcing confidentiality with parties and witnesses
A competent investigator never stops talking about confidentiality. Investigators typically give two main reasons why confidentiality is so critical: (1) Confidentiality is required by the institution’s respectful workplace policy; and (2) Confidentiality is necessary to preserve the evidence and the integrity of the investigation. The reason that is probably most important to a reluctant witness is so obvious that some investigators may skip over it: No one likes to be the target of workplace discussion. Moreover, discussion in the workplace about the investigation can cause profound distress to the parties and witnesses, may aggravate the harm that is under investigation and re-traumatize the participants. Superimposing gossip on top of an already wounded workplace is harmful and counterproductive to workplace restoration.
6. Be aware of the operational disruption that an investigation may cause
In our work as external investigators, we are mindful of not only the trauma associated with the underlying subject matter, but also the strain associated with either pursuing a complaint or being a respondent or witness in an investigation. We are also sensitive to the operational impact and stress that an investigation may cause within a workplace. Investigators should exercise caution to try to ensure that an investigation does not impose unduly on the ongoing operations of the organization.
7. Put yourself in the shoes of the witness
Always ask yourself what you would need if you were the witness. Tell the witness how long the meeting is going to be. If interviews are conducted in person, meet away from the workplace, in a pleasant location with good transit and parking options. Don’t schedule the interview over a lunch or dinner break. Let witnesses know that you hope to take as little of their time as possible, and that they can take a break whenever they want. Know about diminishing returns – you can often cover more ground in two, one hour sessions than in a single three hour session.
8. Make the witness aware of the supports available to them
In unionized settings, convention often dictates the availability of union support, if not representation. Some non-unionized parties engage legal counsel for support through an interview. Be aware of any wording in the governing policy that may restrict or promote representation. Develop your own approaches to the attendance of a support person who is neither a union representative nor legal counsel. We often say that we welcome the attendance of a support person who is “confidential for a living” – meaning that they are bound by their own job requirements or professional obligations to maintain the confidentiality of the investigation. “Support persons” who are not so bound can pose a risk to the confidentiality of the investigation.
Support may also take the form of employer or institutional assistance programs. Be aware of such programs before you begin, and know the institutional contact person.
Witnesses are an integral part of any investigation, and without the legal ability to compel attendance, it is up to the investigator to facilitate and encourage the participation of a reluctant witness and to ultimately build trust through the investigation. The quality of the evidence – and therefore the quality of the investigation – will be the better for it.