It’s a debate all good investigators have found themselves in; should you record your interviews when conducting workplace investigations? A number of organizations still have a policy of not recording interviews for several reasons.
In many organizations, HR personnel are developing and have various levels of expertise in the area of investigations. In these cases, the company and leaders want to give them a safe space to conduct investigations without fear of being ‘caught’ on a recording making a mistake. In other situations, there is a concern that the recording can be used as much against the company as for them, as the investigator is human and there won’t ever be a perfect interview.
One of the luxuries of operating as an independent, third party investigation company is the ability to work in many organizations and see a wide range of internal investigation processes. Through the trial and error of our lengthy careers, we have unanimously concluded that creating audio recordings of interviews is in everyone’s best interest. Let me share with you our reasoning.
Protection of both sides
Our fundamental belief and guiding principle are that everyone is treated fairly and in an unbiased manner when being interviewed by one of our investigators. After hundreds of investigations, we have found that we really have no idea of the outcome of an investigation until we have heard the perspective of all parties involved and then taken the time to weigh the facts to draw solid conclusions based on evidence presented.
The value of this belief is reinforced by interviewees when we ask closing questions around their comfort with the interview process. Nearly without exception people state that they feel heard by the investigator and were as comfortable as possible with the interview process. Many interviewees comment that the investigator made the interview far more comfortable than they anticipated prior to the meeting.
However, it is usually the case that some parties will be happy with the outcome of the investigation and some will not. On occasion, when people are unhappy that the findings of an investigation are not in their favour, they will raise complaints about the process or investigator. Some examples are that people will allege that the process was unfair or that the interviewer was bullying, biased or didn’t allow a fair chance for the interviewee to explain the circumstances. In these cases, it’s extremely helpful to have recorded documentation of the full interview to demonstrate the professionalism of the interviewer and that the interviewee was afforded dignity, respect and due process even when being asked some potentially difficult questions around conduct. Audio recordings allow listeners to hear not only the content of the interviews, but also things like the tone used and level of voices.
In one such instance, I interviewed a respondent who was facing extremely serious allegations which he likely believed would result in his termination from the company if they were deemed founded. The individual was involved in a string of misconduct requiring multiple interviews over several investigations. To avoid facing the repercussions of his actions, the employee made a series of false allegations against the process of previous interviews in which he was involved. Because these allegations were made on the recording, and all previous interviews had been recorded, it was easy to defend both the interviews and the credibility assessment the investigator made of the interviewee. Interestingly, many of the allegations raised by the complainant and nearly all witnesses were that the respondent would act in this manner and make these kinds of false allegations. By recording the interviews, this behaviour was captured and evidenced.
Perfection is not required
Going in to support any HR process or workplace investigation, we aim to do the work with all the integrity and expertise that our years of experience has afforded us. With the risk of tooting our own horns, we do a fantastic job. But we are also human and cannot possibly respond perfectly to every surprise and nuance sent our way.
For those who are afraid of being captured on record saying something that isn’t perfect, I’d argue that what everyone expects is a thorough and fair investigation, not perfection. While there are many principles to follow while interviewing to ensure everyone is afforded due process and treated fairly, the best investigators I know are relaxed, natural and let their personality come through. This is not only authentic, but it puts the interviewee at ease knowing they are communicating with a real person who is actively and empathetically listening to what they have to say. This is far more critical than worrying about asking questions out of turn or forgetting something and having to go back to ask a follow up question. Aim to do the best job you can do, not for perfection.
If you are new to investigations and feel that recording will put too much pressure on you, or reveal any errors you make, we suggest that the benefits outweigh these concerns. Listening to the recordings of your interviews is a great way to hone and perfect your interview style. Recording also allows you to concentrate on the responses given by the interviewee and adapt your questions rather than focusing on making accurate notes. This is especially helpful for new investigators who are learning to modify questions during interviews or when a response is completely unexpected and takes the interview in a new direction. As mentioned in the previous section, recordings also protect you should an interviewee claim that you didn’t represent their interview accurately or treated them inappropriately.
Be diligent in safeguarding the information
Once you have the recorded information, there are a few things that you should make sure you do to be both ethical and legally compliant. I can’t stress enough how important it is to be conscious of the sensitivity of the information contained in the interviews. The recordings need to be treated with as much protection as the rest of your HR data.
As with your entire investigation file, all recordings should be kept securely for the amount of time stated in your retention policy. Investigation files contain sensitive and private information and should be destroyed after the length of time prescribed. Doing this too early can cause problems if there is litigation and investigation notes and recordings have been destroyed, which can cause the investigation to be thrown out or required to be re-done. Conversely, not having a retention policy and keeping records indefinitely can infringe on privacy legislation.
Be open and transparent
In Alberta, only one of the involved party’s consent is required to legally record a conversation. However, I’d suggest in the balance between what is legal versus what is fair and ethical, always lean to be as fair, open and transparent as possible.
While I would always encourage you to record your interviews, I don’t encourage anyone to do this surreptitiously. The intent is never to try to trick or trap someone during an interview. Remember these are workplace investigations and we are looking for facts, not fault. Not only do we believe it isn’t fair to secretly record conversations, it also will result in a lack of trust within the workplace and with the investigators.
We open all interviews with a pre-amble which covers the intent of the interview, the allegations being investigated, expectations of confidentiality and retaliation. During this pre-amble, we state that the interview is being recorded and that it is for the purposes of report writing, the same as our notes. Once we start recording the interview, we re-state again that we are recording the conversation and for what purpose. This provides a clear view to any judge or arbitrator that the interviewee was treated fairly, advised of the purpose of the interview and advised that the conversation was being recorded.
When someone refuses to be recorded
In some cases, the interviewee does not want the interview to be recorded. When this happens, we explain that the recording protects both the investigator and the interviewee. In most cases, the interviewee, upon understanding that this also protects them, is comfortable with the recording. If an interviewee still refuses to be recorded, this could be a potential flag that there may be a motive to challenge the notes/findings once the investigation is concluded. Remember that all interviews are voluntary and an interviewee may refuse at any time. When this occurs, we explain to the interviewee that in the absence of their response to allegations, we will take all the facts, documentation and perspectives received from the other participants to form the findings. Most often, this understanding will put someone at ease to share their perspective as most people want to be heard. In the case of egregious allegations that a respondent knows are factual, they may just not want to say anything that could further put their employment at risk. In those cases, document the conversation and their refusal to participate in your report and continue to findings as you would typically.
In some cases, such as unionized environments where the CBA outlines the style of investigating and interviewing, recordings may be precluded from the interview process. Likewise, some companies have policies that prohibit recording interviews. In these cases, you may employ strategies such as having a second interviewer also take notes and capture what was said in the room or summarizing interview notes with the interviewees and having them sign off that they are accurate. The goal is to remove the potential of the interviewee challenging your interview and not having a witness or physical evidence to back you up.
People who feel desperate to keep their job after serious allegations against them have been founded often know they can’t attack the facts, so they will attempt to attack the process. Making sure you have recorded and documented all actions and statements assists in defending that, which makes the process much easier for you, the company and any judges or arbitrators hearing the complaints.
I hope this helps in your decision-making around internal policy with HR recordings. If you’d like to discuss further, we’d love to hear from you. Drop us a line or give us a call and let us know how we can help.