There is such as thing as constructive silence….and then there is just silence. Unfortunately some employees believe that they are protecting themselves, or their co-workers, if they simply refuse to answer any questions in a workplace investigation. But the law does not allow employers to simply state that they could not proceed with an investigation because the witness(es) would not cooperate. So, it’s time to put on your hat as a “people manager” and take down the wall of silence.

As with any employee meeting, there needs to be a balance between taking a hard line and acting with compassion and respect. This can be hard for a manager or HR professional, because we are often dealing with our own emotions based on history with the involved employees and often pressing time constraints. The following three steps will help you through this process, and should be done in order to be most effective.

  1. Check your emotions at the door. Whether you are interviewing a witness who is the victim, the accused or an observer, it is important to come across as fair and unbiased. Before walking into the interview room, it is always a good idea to walk away from your work and spend a few minutes just breathing and clearing your head. If you can, go outside and take a short walk. Once you enter the interview room, thank the interviewee for taking the time to meet with you to set the tone of a respectful meeting. Speaking slowly and calmly while making direct eye contact will not only relax you, but the person you are interviewing. It is helpful to remember that you are just doing your job, which is not to judge but to gather information. The information is to be noted for later consideration therefore no opinions are to be formed.
  2. When the witness refuses to speak, it is easy to respond with anger. Don’t let this happen. Begin by explaining to the witness that an investigation is a means to uncover the facts of the incident, and that you understand the process may be uncomfortable. Remind the witness of their protection from retaliation and encourage the witness to let you know why it is they are feeling reluctant to share information with you. It is also helpful to tell the witness that the information they provide is only used to determine the truth, and that appropriate action will be taken only if and when wrongdoing has been substantiated.  Then ask a direct question and sit quietly, expecting an answer. Most often the witness will begin speaking, if only to fill the void.
  3. In the case of a stubborn witness who still refuses to provide information and response to direct questions, it is important to be consistent with company policy on how this will be handled. A company does have the right to expect and require employees to cooperate fully with an internal investigation. Therefore, it is important to be ready and willing to move forward with appropriate disciplinary action if a witness refuses to cooperate. The extent of the discipline should be in accord with company policy and may be written warning, final warning up to termination. The important factor is consistency. If the witness will not cooperate, remain calm, and explain the company’s legal obligation to conduct the investigation which requires witness participation. Then explain the ramifications of failure to cooperate. It is helpful to add that you would not choose this as the best course of action, but that the choice is in the hands of the employee. If needed, you may want to offer to leave the room and provide the employee with a few minutes to choose how they wish to proceed.

In almost every case, a witness will choose to protect themselves instead of the parties to the investigation, and will then cooperate. If not, you must follow your policy and discipline as appropriate.