Don’t Make Promises You Can’t Keep

Part Eight in our Ten-Part Series on Investigation Blunders to Avoid

In this ten-part series, we’ve been emphasizing mistakes to avoid and providing some pointers on best practices.  One such best practice is to investigate matters as discreetly as possible, including maintaining confidentiality to the extent necessary and appropriate.  Yet, you should not promise confidentiality, whether to the complainant or to a witness.

In order to investigate thoroughly and to provide respondents with a full and fair opportunity to respond, information must be shared.  Sometimes that includes revealing the names of key witnesses and individuals.  You therefore can’t promise complainants or witnesses that their names or the details of their statements won’t be revealed.

Also, the investigation is likely being conducted in order to determine whether any remedial action must be taken.  That often will require that, at some point, information be shared.  Even if that doesn’t include every detail, it may well lead to more information being revealed than a witness had wanted.  On that score, the matters under investigation may someday be the subject of litigation.  If that comes to pass, virtually everything in the investigation will be revealed.

Finally, even if none of these situations apply, you can’t control what others talk about or what people piece together on their own.  You may well have frustrated witnesses who believed that you had guaranteed that information would not get out.  That’s not something you can guarantee, so limit your assurances to those areas over which you have control.

Avoid the Following Investigation Blunders
In February we provided you with an overview of “Investigation Blunders” to avoid in 2020 (click here).  Over the rest of the year, we will be highlighting each in turn.

1.Not investigating “hearsay” or “rumor” or not investigating because the complainant asked you not to
2.Sitting on your hands
3.Prioritizing being done over being thorough
4.Failing to talk to comparators or former employees
5.Building a case instead of investigating a complaint with an open mind
6.Talking too much and/or closing off possible responses by using leading or accusatory questions
7.Not getting facts – letting the witness characterize events
8.Promising confidentiality
9.Checking your other senses – including common sense – at the door
10.Relying too much (or at all!) on “demeanor” evidence