Employee Misconduct: Best Practices for Questioning the Accused

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Employee misconduct investigations may occur when a person is accused of sexual harassment, theft, making a false claim, unlawful discrimination or other forms of misconduct in the workplace. Accused individuals probably have a right to discuss the accusations against them and decent workplace environments require that employees understand their employees will treat them fairly, even if they have misbehaved. These investigations must be carefully handled in order to get to the bottom of the matter at hand as well as to avoid further liability against the accused. Generally, interviewing the accused is the final step of an investigation. 

Determine an Appropriate Setting

Employee misconduct investigations should occur in a private location where confidentiality is preserved. If possible, the location should be out of view of coworkers so that there is not an assumption of guilt against the accused.

Give an Introductory Statement

At the beginning of the interview with the accused, the employer or its representative should provide the accused with the same parameters and admonishments that all other interviewees received. This should include providing an explanation of the purpose of the interview, which is to discuss allegations against the accused. If the accused is represented by a union, he or she has a right to request the presence of a union representative at the hearing. The introductory statement should include the following assurances:

  • The investigation will be conducted in a fair manner;
  • No conclusion has been reached in the matter at this time;
  • The investigation will be kept confidential;
  • ​​​​​​​This is the opportunity that the accused will have to explain exactly what happened;
  • ​​​​​​​This is the opportunity that the accused has to explain why things happened.

Additionally, the accused should be informed about why he or she is being interviewed and be given a general description of the nature of the complaint against the accused. 

Follow Company Protocol

The employer should ensure that he or she is following company protocol. If the company has a protocol for employee misconduct investigations, these should be closely followed. These procedures may outline parties that are appropriate to conduct the investigation, such as HR professionals or an independent organization. The relevant policies should be identified and closely followed. Following a neutral process for each employee investigation can help avoid claims that the accused was treated unfairly.

Create a List of Questions

Before the interview, investigators should draw up a series of questions to ask during the interview. They may also have standard interview questions that they ask in all employee misconduct investigations. The questions should be progressive in nature, starting with general information and then moving to more specific questions. Open-ended questions should be used to encourage communication. In addition to getting the accused's version of events, the interviewer should also ask for additional information that can enlighten him or her. This includes asking about any other witnesses who observed the acts in question. A skilled investigator will also have techniques that they use with nervous or evasive interviewees.

Document the Findings

After the interview, the interviewer should review his or her notes and then draw up a document that includes the questions and answers. He or she may also draw up a written statement for the accused to review and sign. This step can help avoid allegations that the employer has mischaracterized the accused’s version of events. The accused should have the opportunity to review the statement and correct any errors.

Cite this article: Lynch, N. (2017). Employee Misconduct: Best Practices for Questioning the Accused. Available: https://www.lynchlf.com/blog/employee-misconduct-best-practices-for-questioning-the-accused/


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