He said/she said: Who do you believe? Challenging credibility assessments in workplace investigations

As workplace investigators we don’t get to say we don’t know who to believe so can’t make a finding. We have to decide whether the allegations are or aren’t substantiated. And we have to explain why. 

One of the most asked questions I get as a workplace investigator is about “he said/she said” investigations: how do I know who to believe?

Credibility assessments can be challenging. But not as challenging as you might think. The most challenging credibility assessments are those in which there are no witnesses to the events: it is one person’s word against another’s. This is where some investigators get stumped: how can I find something happened if I have one person saying it did and the other saying it didn’t?

It’s not so much about who you believe as it is about which evidence you think is reliable and plausible. Focus less on deciding who is telling the truth and more on letting the evidence guide you.

Workplace investigations are decided on a balance of probabilities: what do you think is more likely than not to have happened? An essential part of making those factual findings is assessing the credibility of the people you interviewed and the evidence they provided.

A starting point is understanding the difference between credibility and reliability. Credibility is about the sincerity and truthfulness of the witness. Reliability is about the factual accuracy of the witness’s evidence and the party’s ability to accurately observe, recall and recount the events.

Someone can be credible (i.e., honest), but provide unreliable (i.e., factually inaccurate) evidence. But if they aren’t credible (i.e., they aren’t being honest), their evidence can’t be reliable (i.e., it can’t be factually accurate).

In most investigations I do, a finding that someone’s evidence is not factually accurate and reliable is not because I believe they are being dishonest or fabricated the complaint. Rather, it’s because they have made assumptions that aren’t accurate or have misinterpreted someone’s conduct or motive. That is, their evidence is skewed by a psychological bias like confirmation bias or attribution error.

Confirmation bias is the tendency to interpret and prefer information in a way that confirms pre-existing beliefs, while giving disproportionately less consideration to alternative possibilities. Confirmation bias causes people to be unconsciously selective and prejudiced in the gathering and interpretation of information. Attribution error is the tendency to attribute internal motives to explain another person’s behaviour while underestimating external causes. Often the assumption is that the person’s motive is hostile or self-serving and, as with confirmation bias, evidence to the contrary is minimized.

Consider this when making your findings about those challenging “he said/she said” investigations:

• Self-interest – does either party have a self-interest or interest in the outcome of the investigation? (i.e., do they have a reason not to tell the truth?).
• Memory – does the party have good recall of the events and has the person’s version of events been largely consistent throughout the investigation process?
• Corroboration – although there are no witnesses to the incident in issue, are any parts of either party’s evidence corroborated by other parties or documents?
• Plausibility – is the party’s story plausible or believable, considering all the evidence?
• Forthcoming and direct – was the party forthcoming with important, relevant information or were they hesitant or vague? Did they answer questions directly or seem to try to avoid answering?
• Ability to observe – did the party observe the event directly or is it secondhand information? And was their ability to observe in any way impaired or obstructed?
• Opportunity – did the party have the opportunity to do what they claimed to have done, or what the other party is claiming they did? And did a party deny seeing or hearing something that they should have seen or heard?
• Embellishing – does one party have a reason to embellish the evidence or seem to have a tendency to do so?
• Cultural biases – does either party have any cultural biases which would affect or influence their perceptions of what happened?
• Motive – is there any motivation for a false complaint or statement, such as financial gain, employment opportunity or to cause harm to the other party?
• Body language – do not rely heavily on this factor as studies show us that we often misinterpret body language and that it is the person’s words and manner of speaking that are more telling of truth or deception. Diverting eyes, fidgeting or a defensive posture are often interpreted as signs of a guilty party, but can equally be signs of nervousness, discomfort or resentment of having been put in the respondent seat. That said, body language that seems out of step with the topic or words being spoken, is a noticeable change from the person’s baseline body language or that is dismissive or similar to that which is alleged in the complaint can lend itself to a determination of a person’s credibility. 

Although “he said/she said” investigations are challenging, take time to weigh the evidence you do have and consider the credibility of the parties. The standard of a balance of probabilities is that 50% + 1 that tips the balance toward what is more likely true than not true. Thinking about these credibility factors can help you “break the tie” and reach your conclusions.