Employment Investigations: 'She Said, He Said." Are we stuck?!

By:      Rod Lacey

Sunstone HR (Human Resource Consulting)

"A simple “he said, she said” might stop some HR professionals in their tracks, but implementing an Awareness Talk allows you to satisfy the need to address alleged behaviors, protect the accuser and protect the company."


With No Additional Witnesses? There's Nothing We Can Do Here, Right? If you haven’t faced this yet, you certainly will in any employee relations role. Susan comes to human resources sharing details of Gary’s dastardly action. The accusations are big enough that HR makes this a priority and immediately starts an internal investigation. The one catch in this situation is that there were no witnesses. Let’s assume Gary’s alleged action was significant enough to warrant immediate termination, if validated.

Where there were no witnesses, the next logical step in the investigation would be to interview Gary and present him with an opportunity to share his story. What if, when presented with the accusation, the Gary says “I have no idea what you’re talking about. I didn’t do anything of the sort.”

You’re stuck, right? There’s nothing more you can do, is there?

WHAT’S THE RISK?

Let’s consider the risk before we simply walk away with a shoulder shrug and assume that we’ll never get to the absolute truth (which may actually be the case).

If Susan is telling the truth, and Gary’s actions were in fact that bad, the company now knows about the alleged activity and has a duty to act to protect Susan. The company also now has a duty to make sure that Susan is not retaliated against, again, assuming that the allegations are valid. The company may also be held accountable for addressing Gary’s inappropriate behavior in a manner that would be enough to prevent it from occurring again.

On the other hand, if Susan made the story up, a false accusation could be extremely damaging to Gary, and no company wants to reinforce the value of a powerful untruth.

THE AWARENESS TALK

Despite the “he said, she said” nature of the ‘complete’ investigation, there is in fact something effective that can be done that respects both parties (Gary and Susan) and protects the company. I call it an AWARENESS TALK.

The Awareness Talk With The Accused

Once you’ve conceded that “she said, he said” represents the complete investigation, the Awareness Talk happens first with Gary (the accused) and might sound something like this: “Gary, we spoke earlier about the allegations we heard about your inappropriate behavior. I also recognize that you are denying that these things occurred. I am not accusing you of these actions, but (since we’re on that topic) let’s at least have an awareness talk about appropriate work behaviors and boundaries.”

The non-confrontational and non-accusatory approach of the Awareness Talk allows you to coach Gary, in detail, and record that this discussion has taken place.

That meeting needs to conclude with a review of a non-retaliation standard, especially if Susan’s name has been shared or is known. This can also be approached in a non-accusatory way like this: “Now Gary, before we finish, I’m sure you’re aware that employees have a right to bring concerns forward without fear of retaliation. I know you pretty well and can’t imagine that you would do anything like this, but just wanted to remind you of this. We're not going to have any issues with this, are we?”

So, this is what we share with Gary, the accused. What do we share with Susan (the accuser)?

The Awareness Talk With The Accuser

After Susan is told that you were unable to validate the story, you are now in a position to confirm to Susan that “the behavior has been addressed and will not happen again” and that she will "not be retaliated against” in any way. 

You should also ask Susan to immediately report any repeat behaviors and any sense of retaliation directly to her manager (or to HR). You can reassure her that these behaviors will not be tolerated in any way. 

How does this protect the company? Let’s suppose that Gary was dishonest with HR and his behaviors were reported again in the future. If the company’s actions were scrutinized by an external party, it would be able to show that it actually did a pretty effective job of teaching policy and appropriate behaviors, despite the absence of a validated story-line.

Let's suppose that Susan was being dishonest and just wanted to get Gary fired. The non-accusatory approach of the Awareness Talk prevents the company from being held liable for repetitional harm that might accompany a false accusation. 

NEED MORE?

If you would prefer to strengthen the nature of the Awareness Talk, I would recommend implementing a tactic that I learned from Jathan Janove, called a ‘Same Day Summary.’ The Same Day Summary is a written document (which could be an email) to the individual that is delivered to the individual to summarize the day’s meeting.

To illustrate how a Same Day Summary works, after HR met with Gary, an email would be sent to Gary on that same day that summarized the nature of the conversation. The tone could continue to be non-accusatory, but would detail the scope of the discussion. “Gary, as you are aware we met today to discuss appropriate behavior in the workplace and more specifically reviewed these six topics . . . Please let me know if this summary does not match your recollection of the meeting or if you have any questions.”

SUMMARY

A simple “he said, she said” might stop some HR professionals in their tracks, but implementing an Awareness Talk allows you to satisfy the need to address alleged behaviors, protect the accuser and protect the company.

An Awareness Talk coupled with a Same Day Summary gives you double the teaching opportunities and provides even additional documentation, should the company’s practice ever be brought into question.

A seasoned employee relations person recognizes that there are always two sides to every story, and that rarely do all of the facts line-up. Having an Awareness Talk in your bag of tools will be a helpful practice for any HR professional, especially when we're stuck with very different stories. 


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