?The outcome of an HR investigation is sometimes “inconclusive.” In other words, the conclusion is a lack of a conclusion.
This result frequently occurs either because there were no witnesses to the alleged incident or there was disagreement among the witnesses as to what happened. But neither circumstance necessarily supports the absence of a determinative conclusion by HR.
Many inconclusive findings could be avoided if HR were to make credibility determinations. Indeed, making—and documenting—such determinations is a critical component of most investigations.
Nonetheless, making credibility determinations involves more than simply sharing one’s intuition as to whether someone is telling the truth. Rather, investigators need to demonstrate that they have considered certain factors in making their determinations. They also must be careful not to misapply the information they acquire.
There are at least a dozen factors that could be considered in assessing credibility. In order to demonstrate the analysis that goes into making credibility determinations, I focus on three of those factors in this article.
The Consistency of the Individual’s Story
Perhaps the most obvious factor in evaluating the credibility of an individual’s account is whether it is internally consistent.
Generally, consistency is considered a sign of credibility. However, the fact that an individual’s story is consistent does not necessarily mean that the person is telling the truth. An individual who is lying can be consistent with a lie.
Furthermore, investigators must be consistent themselves. An investigator who decides that a prior inconsistent statement casts doubt on an individual’s credibility should ask if any other witnesses have shown comparable inconsistencies. By looking at the comparators, the investigator can determine whether the same conclusion can be applied to them or whether and how they can be meaningfully distinguished.
The bottom line is that, as with other employment decisions, when weighing consistency and credibility in an investigation, employers should consider not only the employee at issue but also others who may be similarly situated.
The Individual’s Demeanor
Yes, demeanor may matter. But it is a complicated and subjective factor to weigh. While investigators often use general labels, such as “seemed nervous,” those labels are almost always inadequate.
When considering demeanor, drill down to specific behaviors. What did the employee say or do that led to the credibility concern?
Then, answer the following question: Why are the specific behaviors potentially relevant to the individual’s credibility?
Let’s focus on one example: lack of eye contact. Some assume that an individual who avoids eye contact is hiding the truth, but that is not necessarily the case. To the contrary, a lack of eye contact can be a sign of respect in some cultures.
What if someone maintains eye contact except when certain questions are asked? While it is hard to accept a cultural explanation in such a situation, it still does not necessarily follow that the individual lacks credibility. The employee may avoid eye contact in response to certain questions due to discomfort or embarrassment, for example.
Because demeanor is inherently subjective, keep digging. Lack of eye contact when asked certain questions might be coupled with the individual’s attempts to change the subject. Now, that probably is reason to question credibility.
In making credibility determinations, go beyond conclusory labels and look to supporting behaviors. In many cases, no one factor alone is determinative when it comes to credibility; multiple factors must be considered. Even then, be careful not to jump to a conclusion too quickly.
The Individual’s Memory
What an individual remembers—or does not remember—may be relevant to that person’s credibility. When someone “does not recall” virtually everything, that might raise suspicion. In most cases, however, memory as a credibility factor is more complicated.
For example, investigators need to look for patterns in memory. If an individual has a strong memory except for the time period in question, the investigator may infer that the employee is withholding information.
Additionally, someone who seems to have a pristine memory may not be telling the truth. Would a person be likely to recall verbatim everything that was said in a conversation that occurred six months ago?
The answer could be “yes.” An individual may have a good reason for remembering precisely what was said six months ago because the person took contemporaneous notes. This is one reason you should ask for notes or other documentation.
But be sure to build on the facts. What if others who were present have the same precise memory and they did not take notes or prepare a file memo? This may suggest that the individuals coordinated their responses. Indeed, the “perfect” corroboration might be a little too perfect and ultimately become one factor that results in credibility concerns about the corroborators, whom the employer may conclude were collaborators.
Be careful not to jump to conclusions when it comes to memory. As with demeanor, look at all relevant facts and not one fact only when determining whether someone’s memory—or lack thereof—makes them credible or incredible.
Jonathan A. Segal is a partner at Duane Morris in Philadelphia and a SHRM columnist. Follow him on Twitter @Jonathan_HR_Law.
Illustration by Adam Niklewicz for HR Magazine.
Other Credibility Factors to Consider
There are many other factors that may touch on a person’s credibility. In addition to the three examples discussed in this article, reliability is another. More specifically, the question usually is whether the person could have heard or seen what they claim to have heard or seen. Let’s assume an employee claims to have overheard a conversation and recalls what was said. The investigator needs to ask questions that focus on physical proximity in order to help assess whether, in fact, the employee could have heard the exchange. But, as with other factors, be careful not to leap to conclusions too quickly. An individual could have been in close proximity to an event but not heard something that was said because the person was focused on a conversation with someone else. We are not done yet. If an individual has a clear memory of the content of a conversation between others except for the key exchange at issue in the investigation, one might have reason to question the selective memory. As noted elsewhere in this article, an investigator typically must consider more than one factor to make a reliable credibility determination. There are few true rules when it comes to making such determinations. It is usually more art than science. —J.A.S.
