There has been a bit of a discussion on LinkedIn recently on the use of leading questions by a workplace investigator.
As to be expected with things on social media, there are definite views on both sides.
Those in support of it say there is no issue with them.
My own view is that by asking leading questions, the workplace investigator runs the of having a biased workplace investigation.
And, a biased workplace investigation, especially if it results in a termination, could potentially cost the company money and reputation.
The Problem With Them
For those who came in late, a leading question is one where the answer is suggested, usually yes or no.
The question is asked in a particular way so as to lead the person answering to give a particular response.
For example, if you ask someone “Did you see Barry at 4pm?”
In this question, the answer is usually a yes or no.
This creates a problem because it doesn’t give the person the opportunity to answer the question in their own words.
It also gives the impression, whether actual or not, that the workplace investigator is working towards a predetermined outcome.
Where They Can Cause Problems
Asking leading questions can get the workplace investigator into trouble, because by asking them, the question gives the impression of not being impartial.
One supporter of them says that they are useful in testing someone’s answer.
For example, let’s say that someone has made a complaint about the language used by a work colleague.
A leading question would be to ask the person, “Did you scream, f*$k off to Barry?”
The question is either yes, no, or don’t know.
Pushing further, leads to another leading question being asked, “Is it possible that you did?”
By asking the question, the workplace investigator appears to be seeking an answer that they did say that.
And honestly, if that one question is able to tip the scales of the workplace investigation, it wouldn’t be the best one to begin with.
People Will Lie
Supposedly, the reason for asking leading questions is to make sure that the person isn’t lying to the workplace investigator.
Which in a way is fair enough.
Complicating the matter a little bit further is that during a workplace investigation, there will be people who do lie.
They may not be big ones, though may do it just the same.
Commonly known as covering their butt.
Except it isn’t the job of the workplace investigator to expose lies.
All the workplace investigator is doing is gathering information to present their findings in the final report.
What Does It Matter If They Do?
Something that many seem to be forgetting, is that it doesn’t really matter if a person is lying.
If the employee has had it explained to them the consequences of providing false or misleading information, then there shouldn’t be any concerns that are lying.
If they do, then so be it.
It is on them.
If the information provided by others, based on the balance of probabilities supports the lie, then there isn’t anything that the workplace investigator can do about it.
If the information doesn’t, likewise, there isn’t anything that the workplace investigator can do about it.
A few things that we all need to remember are.
For a majority of workplace investigations, they are conducted by an employee of the company.
Going all in, with an obsession to get to the truth is likely to erode trust. Which will make it harder for future workplace investigations.
What if the result of the workplace investigation is that an employee is terminated?
If the termination is challenged, leading questions in a workplace investigation could point to it not being impartial.
Which could result in the termination being ruled unfair.
Doing this, exposes the business to both financial and repetitional risk.
“But what if we keep the person on, and they do it again?”
While this is a valid concern, it isn’t up to the workplace investigator to make that decision.
Keep in mind, a workplace investigation has the lower burden of proof of “on the balance of probabilities”.
If something can be proven or not proven on the balance of probabilities, that is all a workplace investigator needs.
They aren’t criminal investigations or a court room so nothing needs to be proven “beyond a reasonable doubt”.
Invest In Learning
While the easy way may be to ask leading questions, a far more useful option is to invest in keeping your skills current.
Especially if you only do a few workplace investigations a year.
This could be a yearly (minimum) refresher course, attending workshops, even coaching.
By doing this, you will keep up to date with what others are doing, and discover other ways to conduct an impartial workplace investigation.
IR Simplified offers a training course to help you to conduct compliant and low risk workplace investigations.
This training is 100% online, lifetime access, and regularly updated.
Here are some other workplace investigations articles that you may be interested in
- I Can’t Recall
- Leading Questions. Should You Or Shouldn’t You?
- Can An Employee “Take The Fifth”?
- Using The OODA Loop In Workplace Investigations
- When Workplace Investigations Go Wrong