Sexual Misconduct in the workplace – What does research tell us about recording complaints and capturing memories?
Sexual Misconduct in the workplace – What does research tell us about recording complaints and capturing memories?
Last week our MD, Mick Confrey, explained how important it was to capture memories in an empirically researched way. See the article here.
This week Ian Hynes discusses investigative interview meeting notetaking, the various ways that accounts can be recorded, and the associated benefits and limitations of alternative options. What’s not in doubt is that when liberty, livelihoods, careers, and well-being are the stakes there’s really no excuse whatsoever for shoddy investigation.
Firstly, as a guiding principle, it’s important to understand that the accounts of all parties have equal merit when it comes to the process of capturing them accurately and reliably, those reporting incidents, witnesses to them, and those reported. It is what is in those accounts, the quality of evidence and how it was captured, that will be subjected to validation (internally or externally) and inform decision-making. That is why it is so important to capture them accurately, fulsomely, and reliably.
The outcome of any misconduct investigation has the potential to be scrutinised by a tribunal, discipline panel, or any other body that might sit in judgment. Where that misconduct might amount to criminality there’s every chance it could be tested and judged by a criminal court at any time in the future.
That’s not to say that workplace misconduct should be investigated disproportionately to the criminal standard of proof, beyond a reasonable doubt, but it does mean that the empirically proven methodology shouldn’t be abandoned because an issue is only being investigated to the lower civil standard, balance of probabilities.
Indeed, it might even be argued that if the evidential test is lower the standard of investigative interviewing should be even higher. This is particularly relevant in the many civil discipline investigations that hinge on the old ‘he said/they said’ chestnut. A typical example is the current Yorkshire cricket racism investigation where judgments are relying entirely on opposing accounts of the same event.
Panels and tribunals increasingly rely on specialist legal advice and representation of responding parties. Lawyers practice a concept known as ‘Active Defence’, a legitimate tactic of undermining witness evidence, more specifically the process of obtaining and presenting it, a compelling reason that rationalised thought should be given to how verbal testimony (memory) is captured.
Returning to the specifics of notetaking, we will explore the options open to the investigative interviewer, some of the researched associated psychological impact on memory, and, as a result, the reliability or otherwise of interviewee accounts.
Realistically, the investigative interviewer has 4 options to capture an interviewee's account. In ascending order of reliability, accuracy, and completeness:
1. Reliance on their memory
2. Written notetaking
3. Audio recorded notetaking
4. Audio and visual notetaking
The fragility and limitations of memory, the interviewees, and the interviewers, are such that option 1, reliance on memory alone, should never be relied upon as an option for a planned interview meeting. It is almost inevitable that accounts will be corrupted and contaminated with the residual effect that any account relied upon will be flawed. Next time you have a conversation (interview) with someone try and remember the detail of both what you said and what they said. I guarantee that you’ll not get beyond the initial exchanges! The only time this should be considered acceptable is when there’s a necessity to capture detail from an unplanned, unsolicited meeting in which case the advice is to record a note of the conversation at the earliest possible opportunity.
Option 2 is probably the most common notetaking method favoured in the context of a civil investigation. There are 3 elements to this, i) the interviewer taking notes themselves, ii) using a co-interviewer as a notetaker, or iii) a combination of both. Relying on the co-interviewer to note-take is perhaps marginally more reliable, but all are subject to the limitations of short-term memory, natural tendencies to edit information, reinforcement of a preferred narrative (perhaps driven by confirmation biases?), and a host of other technical and psychological risks to quality and reliability.
Written notetaking inevitably leads to clipped responses and reduced information as all parties naturally proceed at the pace of the notetaker. Factor in a third-party ‘friend’ or legal representative of the interviewee taking their own notes and a comparison of outputs is often very illuminating! The author uses a mind-mapping forensic storyboarding technique when making written notes either as a lead or co-interviewer. You can find out more about this by contacting the team at Intersol (info@intersolglobal.com).
Option 3 presents perhaps the most proportionate, balanced, and reliable notetaking process in all but the most serious cases or those interviewees with the most vulnerable in society. It is, without doubt, the default position advised by Intersol Global notwithstanding there are some occasions when policies actively dissuade such methodology. It remains perplexing why some institutions and organisations actively refuse to record such investigation meetings, the author can only speculate on the reasons whilst raising a red flag about the dangers and actively persuading professionals that recording enables reliable evaluation of facts determined identification of additional investigation actions and evaluation of performance and self-reflection.
Option 4, an audio and visual recording of an interview is undoubtedly the ‘gold standard’ providing the visual recording captures all the detail, not just the behaviour of the interviewee, to address any concern that responses were influenced by interviewers’ non-verbal communications. In criminal law, there are occasions when visually recorded interviews are admissible as evidence-in-chief.
This is unlikely to be the case in civil proceedings though in cases of “serious sexual misconduct that might amount to criminality” (Pinsent Masons 2016), when a reporting party might later decide to resort to criminal proceedings, there is a compelling argument that consideration of visual recording should feature in decision-making in most cases.
For the doubters that make the point that the interviewee has the opportunity to sign off the statement as a safety net, that statement is a selectively edited representation of the interviewee’s disclosures drafted by the investigator from notes and personal recall, a representation given to the witness for checking and comment. Research tells us that very few witnesses make changes or additions prior to sign-off (Shepherd, E, and Milne, R. 1999).
In all the options outlined, the ’devil is in the detail’ in any investigation context.
In the annals of military folklore is the story of the orders being sent by a British unit in World War 1 that was sent as "Send reinforcements, we are going to advance" but received by the headquarters as "Send Three and Fourpence, we are going to a dance". Such is the danger if interviews are not recorded properly.
For more information or to explore investigation training and support contact us at info@intersolglobal.com.