13 Chapter 13: Investigation Challenges

Every investigation is going to have challenges regardless of the nature of the investigation, whether the investigator is internal or external to the organization, or whether the workplace is unionized or not. Below are some the challenges that an investigator may face, although this is not an exhaustive list. Each investigator will be able to add their own experiences to this chapter.

Difficult Interviewees

Being involved in an investigation can be a stressful or uncomfortable thing for an employee, whether they are being investigated for misconduct, are a party to discrimination or harassment or a witness. People will have different reactions and sometimes unexpected behaviours and attitudes.

Interviewees may be reluctant to participate, they may be aggressive or challenging, or may simply be scared. The investigator needs to be aware of how the interviewee is reacting to the investigation and possibly adjust their approach to create a suitable environment for an interview to take place. It is important to maintain consistency in the process, but the approach may be differentiated. It is important for the internal investigator to remember that the interviewee is a fellow employee, and that the investigator may have interactions with the employee after the investigation. This will help the investigator to maintain a respectful and collegial approach regardless of how the interviewee may be acting.

Reluctant Interviewees

One of the biggest challenges that investigators have is that of the reluctant witness or respondent who will not participate in an interview. This can be especially true in a unionized environment where speaking to the investigator may be seen as breaking union solidarity and the person is viewed as a “rat” or a “fink.” Quite often union members feel that they, with other union members, are on one team and that management, including the investigator, are on another team. Someone may be reluctant to provide information because of fear of reprisals or retaliation from colleagues. There may also be a fear that the investigation will lead to further discipline that could include the interviewee.

The question of whether an employee is required to participate in an investigative interview will depend upon the policies, procedure, and direction of the managers of the organization. An employee can be compelled either by a policy or by their manager to be interviewed as part of an investigation, but their actual participation may be lacking. The investigator will try to explain that they want to hear what the interviewee has to say, and they are there with an open mind. They should try to set a positive environment through body language, tone and volume of voice. The investigator should be present in the interview, giving the interviewee their fully attention, so that the person feels they will be listened to. On a whole, even if the person is compelled to participate in an interview, if they don’t want to be there the investigator will get very little out of them. They are considered “participating,” when they answer, “I don’t remember” or “I don’t know.”

If after the introduction and explanation of the process someone refuses to answer a question, the investigator can remind them that this is a workplace investigation, and that the employer has requested their participation. The investigator does not want to threaten or intimidate the interviewee, but the investigator can stress that they want to hear their side of the story or what the interviewee has to say.

If an interviewee is belligerent or rude, the investigator can remind them that failure to participate may result in further action by the employer. The investigator should be careful not to threaten an interviewee or appear to be bullying them.

Non-answer Answers

Sometimes an interviewee will think that they are satisfying the requirement to participate in an investigation if they provide oblique or ambiguous answers to all of the questions posed. Another approach may be to simply say “they cannot remember” or “they don’t know.” The investigator can advise them that their failure to fully participate may create an adverse perception of the events or may reflect badly upon their side of the issue. As the investigator will weigh all of the evidence to make a decision, if the interviewee does not articulate their story the investigator is left to accept other evidence which may contradict their story.

If someone says that they do not have to answer the questions because they “have the right not to incriminate themselves,” this stems from the Charter of Rights and Freedoms but would not apply to workplace investigations. Protection under section 11(c) allows the accused person to be free from the compulsion to testify against him or herself. However, this is only if the individual is being questioned by a law enforcement officer in a criminal investigation.[1]

There is one unique circumstance that an investigator should be cognizant of. If the employer is the government and the investigator is conducting an investigation on behalf of that employer, the investigator needs to be aware of section 11 9c of the Charter of Rights and Freedoms. The reason for this is because the protection of section 11 9c is invoked if two conditions are present – one, if a person is being interviewed by a “government actor” and second, if the investigation could result in a penalty that is penal in nature (criminal). Both conditions must be present, which would be very rare. For this unique situation to exist the investigator would need to work for the government and be representing the government as a “government actor” and the potential punishment for wrongdoing must include the possibility of going to jail.[2]

Someone may contend that they have the right to remain silent… or they are “taking the 5th.” First, “taking the 5th” is an American term and has no implication for Canadian workplace investigations. In the Canadian context the right to remain silent comes from Section 7 of the Canadian Charter of Rights and Freedoms, which is a fundamental right in both common law and under the Charter in court proceedings. This does not necessarily apply to workplace investigations, as it is not a court proceeding[3].

However, someone cannot be forced to talk to an investigator. The investigator can point out that this is a workplace investigation and that there may be further action taken by the employer for failing to abide by the policies and procedures of the employer. As mentioned previously, the investigator can remind the person that they will make conclusions based on the information gathered in the interviews and their non-participation may lead the investigator to make adverse conclusions. If someone does not respond to questions the investigator is left to question their credibility. The investigator should make a notation in the interview notes that the person refused to participate.

If done very tactfully, the investigator may point out that an interviewee refusing to answer appears to lack remorse or is implying admission, which can be taken into account should there be findings from the investigation. In the case of unionized environments, some arbitrators have found that refusing to participate in an investigation can be found culpable if the silence has a negative impact on the employer’s business or public interest, however this ruling is being tested all the time in arbitrations and may not always hold true.

Suggestions have been provided as to how to encourage people to share their side of events in an investigation. Some are gentle prods while others are more direct statements. All should be delivered in a professional and respectful manner. The investigator must not:

  • threaten, cajole, or try to trick individuals into talking.
  • get upset with difficult interviewees.
  • jump to conclusions of culpability when someone won’t answer questions. The investigator must look at all the evidence. Just because someone is being difficult does not mean that they are culpable of the misconduct being investigated.

Challenging or Manipulative People

When dealing with uncooperative or difficult people, the investigator should try to avoid being baited into a confrontational exchange. Investigators need to be aware of what their own triggers are i.e. sarcasm, attempts to bully or belittle. An investigator should not be afraid to pause or stop an interview if they feel that they are becoming irritated or emotionally involved.

Every investigator should be prepared that at some point in time someone in an interview is going to try and “push their buttons” as the investigator may be seen as an authority figure and the outcome of the investigation may alter someone’s career trajectory. Individuals who have not dealt with authority well in the past may not hesitate to try to challenge or to manipulate the situation.

Just as it is uncomfortable to deal with people who are aggressive, loud or challenging, individuals who attempt to manipulate by using flattery, humour or trying to get out of answering questions with funny or charming anecdotes can be challenging to interview.

Hostile or Violent People

There may be reluctant interviewees, there may be challenging or manipulative interviewees and unfortunately, there can also be hostile or potentially violent interviewees. The investigator needs to ensure their own safety at all times. Some precautions may need to be taken to ensure the safety of the investigator such as having another person in the room, conducting the interview in a room with multiple exit points, posting security personnel outside the room and ensuring multiple communication methods are available. The investigator needs to be aware of the following, as not all volatile individuals present themselves that way at the beginning of the interview:

  • Watch for signs of escalation in an interview. Things like increased volume of voice, agitated body language, increased swearing, threats or aggressive actions.
  • Recognize when someone is hostile about a situation or hostile towards the investigator. People may get very worked up when talking about a situation in the workplace, but that hostility is not directed at the interviewer.
  • When the hostility is directed at the situation the investigator may be able to help the person calm down by allowing the person the space to vent their feelings about the issues.
  • Always give the person the opportunity to end the interview if they themselves feel that they are getting too worked up.
  • Identify when the hostility is directed at the interviewer and is escalating, at this point stop the interview and ensure personal safety.

If the interviewer remains calm, with a normal voice it may have a calming effect. The investigator should not agree or disagree with what the person is saying, the investigator listens actively and reflects the emotions that they are experiencing. However, the investigator is not a therapist so should be sure to stay focused on the purpose of the interview.

Problems with interviews

Interviewers can easily fall into common perception mistakes. These can be cognitive mistakes such as succumbing to stereotypes, biases, jumping to conclusions and letting their own agenda or ego take charge. Interviewers need to be aware of the following common pitfalls listed by the Alberta Ministry of Justice and Solicitor General:

1) Perception and Memory Problems: interviewers are not always objective in how they view the world. One’s memories are not always accurate. Memory is limited and information can be lost or intentionally altered. Recall is fallible and not always accurate. A mistake in memory of key facts can become a firm belief as something one “knows,” even though it is based on a mistake in memory. Intuitively individuals place greater weight on evidence that supports their beliefs than evidence that contradicts it.

2) Tunnel Vision: neglecting other points of view and being exclusively focused on one’s own view of a problem. An investigator with tunnel vision is unable to imagine any view of the situation except their own. This occurs when one focuses only on information that supports their view; they limit information to that which supports their hypothesis. An investigator may focus on one piece of information, or one event while discounting other information that may contradict that view.

3) Making assumptions: when investigators are quick to make judgements without all the evidence they are likely relying on assumptions. Once an investigator makes an assumption, they may inadvertently seek out evidence that supports that assumption or discontinue seeking out evidence at all based on their assumption.

4) Failure to keep an open mind: when one anchors their assumption on a single piece of evidence, they have unconsciously excluded other evidence. Interviewers may focus on easily remembered pieces of evidence and fail to include other evidence.

5) Relying on Intuition: Typically people use two kinds of decision-making processes: rational and intuitive. In the rational approach, conscious thought takes place, evidence is considered and a reasoned deliberate decision is arrived at. Intuition is different. Intuition suggests an unconscious, automatic process where decisions are reached based on prior experience and mental shortcuts. Intuition can be influenced by emotion and bias and is prone to error. In an investigation, intuition should be acted upon with caution. When it is used, rational analysis should be used to examine it prior to conclusion.

6) Failure to recognize key evidence: interviewers are influenced more by vivid information than abstract data. More attention is given to witness statements than physical evidence. The weight attached to witness statements is not always warranted. International research has repeatedly shown a high rate of inaccuracy in witness statements. It is not unusual for the vividness of eyewitness evidence to overshadow the important of other more reliable evidence.

7) Ego: Ego can prevent investigators from acknowledging their mistakes and overriding input from others who the investigator deems as less knowledgeable or skilled.

8) Fatigue: Investigators who are trying to complete the investigation too quickly and are tired are more prone to making mistakes. Investigators who interview multiple witnesses in one day are less likely to be as attentive to the last witness than the first.

9) Too much or too little information: Too much information or evidence can lead to investigators becoming overwhelmed in details, fatigued, confused and possibly losing sight of the big picture. In the case of too little information or evidence, investigators may resort to drawing inferences from the evidence they have and making quick conclusions.

10) Groupthink: When an investigator is part of an HR team or part of an HR department, they may discuss the investigation with colleagues. The group may start to advise or help the investigator to make decisions. Decisions may be made by the group which are based on false assumptions, incorrect or incomplete information, previous history or interactions with employees. In these situations, individuals may be afraid, reluctant or hesitant to challenge or question a decision or assumption made by the larger group. This occurs in highly cohesive groups under pressure to make important decision. Common wisdom goes unquestioned, sometimes with disastrous results. In groupthink there is a reluctance to think critically and challenge the dominate theory. In any investigation, it is wise to question assumptions, evidence and procedures. You want to question yourself “How do we know what we think we know.”[4]


Investigators also need to be aware of their own biases in conducting investigations: Biases are cognitive shortcuts that we take to minimize the work our brains have to do. Sometimes investigators succumb to these biases:

  • Anchoring bias: when one is overly reliant on the first piece of information they hear.
  • Availability heuristic: when people overestimate the importance of information that is easy to remember.
  • Clustering Illusion: the tendency to see patterns in random events.
  • Confirmation bias: we tend to listen only to the information that confirms our preconceptions. Once you have formed an initial opinion about someone, it is hard to change your mind.
  • Conservatism Bias: when people believe prior evidence more than new evidence or information that has emerged.
  • Halo effect: where we take one positive attribute of someone and associate it with everything else about that person or thing.
  • Recency Bias: the tendency to weight the latest information more heavily than older pieces of information.
  • Stereotyping: expecting a group or person to have certain qualities without having real information about the individual.[5]


Active listening goes beyond just listening. Active listening means being attentive to what someone else is saying. The goal of active listening is to understand the feelings and views of the person. In fact, active listening comes from the person-centered therapy of Carl Rogers. However, active listening is not only used in the therapeutic setting – it’s an essential component of effective communication. An effective interview is reliant upon good communication. The interviewer wants to show the interviewee that they are actively listening by doing things that show their engagement like head nodding, mirroring body position, eye contact, leaning in, using encouraging prompts such as “I see” “uh-huh” “right” “tell me more” etc. Part of that good communication is active listening; it is a skill or tool which helps the investigator to understand those in an interview.

Two components of Active Listening

  • Seek genuinely to understand the other person
  • To communicate or reflect that understanding back to the person[6]

Active listening is important in an investigative interview because it tells the other person that they have been understood. If someone does not feel that that they have been heard and that the investigator understands what they are saying they will have little confidence in the outcome and likely will not accept the findings of the investigation.

When trying to be an active listening the investigator will need to keep four points in mind:

Suspending judgment of the speaker

People want to believe that they are right, and investigators need to suspend their judgment about what may be right or wrong and just listen. One must work to see the world as the other person sees it. This is very difficult because the investigator is expected to make an assessment at the end of the investigation and, naturally, judgements are made along the way, However, sometimes additional information comes to one’s attention that changes their judgments. People may say things that do not align with the investigator’s own values, and it is difficult for the investigator not to judge that person. As much as possible the investigator wants to reserve any kind of judgment until all the evidence is collected and a thorough analysis has taken place.

It is not however, easy to suspend judgement when interviewing parties to an investigation. One may infer that suspending judgment means that they are agreeing with the speaker, which is not so. An investigator in an interview is seeking to understand, not confirm. Sometimes investigators are afraid that if they listen to another’s view carefully it may affect their own views in negative ways. An investigator must have confidence in their own views but be open to looking at things in a different way.

Focus on emotion as well as content.

Look for the emotion not just what the person is saying. The investigator is not a therapist and is not there to counsel the interviewee, but they want to try and listen with empathy and pick up on the emotions being conveyed. The investigator cannot become too wrapped up on the other person’s emotion to the point where they lose objectivity. Just as they cannot be frosty and unemotional, the investigator is not there to help the interviewee feel better our counsel the person on their emotions.

Following not leading the conversation

Let the interviewee talk. It is easiest to ask open ended questions and just let the person tell their story, even if it is not exactly the direction the interviewer thought it would go. This is hard because we often start to ask questions that are important to the investigation and it may be frustrating to let the speaker go where they want. An investigator will have a list of questions that they want to ask and may focus on getting their questions out of the way. However, the person will likely answer many of those questions if the investigator just lets them talk and listens.

Reflecting accurately what is understood.

Reflecting accurately what is understood is paraphrasing information back to the speaker to ensure that the interviewer has accurately captured what the person has said. The investigator will want to confirm the information and that it has been captured correctly. This will be very important as the investigator is trying to take notes and listen at the same time. It does not hurt to take a quick break and repeat back what has been heard to make sure that it is understood correctly. DO NOT parrot back to the person what they have said, it makes people think they are being mocked. The investigator should also be careful not to overstate what the speaker has said as they may feel that they are being manipulated. Remember, at the end of the investigation an interviewee will review the notes and sign off if the notes are correct. It will save much time and effort if the investigator periodically checks to see that they have understood what is being said.[7]

Listening and Responding to the Excessive Talker

Sometimes investigators have the problem of getting people to talk, other times there is the opposite problem – the excessive talker. When practicing active listening it is suggested to let the person lead the conversation and tell their story, but this can sometimes be excessive. However, it is important to remember that what is excessive talking for one person may be just the right amount of information or enthusiasm for another. Many people are most comfortable processing information by thinking aloud. To a person who talks little and moves quickly to conclusions, this seems like far too much talk. To another person whose brain works the same way, it may seem perfectly normal.

People may also be very nervous in an investigative interview and may find themselves talking more than normal out of nervousness.

Listening and responding to the excessive talker is challenging, but it is not impossible. However, the interviewer must actively engage in the conversation to get the information they need presented in the way that they need it. There are two tools interviewers can use to do this.

1. Interrupting. As a child, most people were probably taught not to interrupt, but an investigator can use interrupting to better participate in the conversation. Phrases such as  “Excuse me, but . . .” or “Let me see if I understand you . . .” allow them to break into the conversation and ask for specific information without putting the speaker on the defensive.

2. Focusing. In effect, focusing is asking the speaker to come to the point. A simple phrase such as “So, your point is . . .” or “Then the bottom line is . . .” will usually help put the conversation back on track.[8]

This chapter has focused on just some of the challenges of investigative interviews, but undoubtedly there are many more that could fill additional pages. There is no perfect formula for convincing the reluctant witness to be more forthcoming, calming a hostile or upset interviewee, nor is there the ideal advice on how to best deal with an excessive talker. Each investigator will develop their own style and method of interviewing that works well for them. Like any professional the workplace investigator will determine what is successful and continue to develop and hone their skills to be able to tackle any investigation.

  1. Government of Canada 2202, sec 7 part 1, c11
  2. Government of Canada 2022, sec 11, 9c
  3. Government of Canada 2202, sec 7
  4. Alberta Ministry of Justice and Solicitor General 2012, 175,176
  5. Lebowitz, Akhtar and Marguerite 2020
  6. Clawson 2018
  7. Clawson 2018, 2,3,4
  8. Barth 2012


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