Dangers of interviewing the employee alleged to have done wrong

A common process failure that leads to trouble for employers is interviewing the employee who may have done something wrong. This usually happens early in the process while the employer is trying to find out what has happened, and if a disciplinary investigation should be carried out.

Unfortunately, this is the wrong process, and results in trouble when the employee alleges that they were taken by surprise and ambushed without being given the necessary information and warnings.

In a recent example an employee alleged he had been assaulted at work by a co-worker. The employer interviewed some of the witnesses, and the employee alleged to have done the assault, to see if she should begin a disciplinary process.

The employee was told he could have a support person but was not told what the allegations were, was not given any time to prepare to respond and was not told the potential consequences. These are all matters that the employee must be given before they are interviewed, even if you have not yet decided to start a formal disciplinary investigation.

The proper process to follow should involve interviewing the complainant and other witness (but not the alleged perpetrator) to see if it appears that a disciplinary process should be started.

If it is clear that a disciplinary process should begin then the employee should be told in writing of the allegations, the potential consequences and their right to a support person. They should be given sufficient time to prepare, and copies of the information collected so far by the employer.

If the employer is unsure after interviewing the witnesses and wants to give the employee a chance for input before a disciplinary allegation is made then this can be done, but a very careful process must be followed.

The employee needs to be told that:

1. The employer is gathering information to decide if a disciplinary allegation will be made;
2. The employee is not obliged to respond at this point;
3. Anything they say can be taken into account now and later if an allegation is brought;
4. They will get another opportunity later to respond if an allegation is brought;
5. Not responding now will not be held against them; and
6. They should get advice from a representative/support person before deciding whether to respond at this stage.

If you need help getting this process correct or have any other issues you need assistance with please give Alan Knowsley a call.