The practicalities of polygraph testing in the workplace
Perhaps you suspect an employee of misconduct. You may be thinking about requiring them to attend a polygraph test. Before you go any further, consider our legal starting point in respect of such tests: A polygraph test alone is not proof of misconduct. Despite this, polygraphs can be useful tools in the investigation process. While test results should not be the foundation of your case, they may be used to: corroborate your direct or circumstantial evidence; challenge the credibility of the test subject; and weigh the balance of the probabilities in your favour.
Choosing your polygrapher
Polygraph results may narrow the scope of your investigation but their ultimate value (or lack thereof) is as evidence. At the outset of your investigation, envision the worst case scenario: What if a dismissal flowing from this investigation ends up at the CCMA?
There are numerous polygraph service providers on the market. They usually have a roster of polygraphers that they can make available as and when suits you. Naturally, this service comes at a price. Make sure that this is money well-spent. You should have your polygrapher testify to the reliability of their results at arbitration. If you appoint an unqualified tester a Commissioner will reject their findings.
An experienced professional will know the information a Commissioner requires. In short, this will be: a breakdown of the tester’s recognised qualifications and the testing method applied; confirmation that their testing method complies with recognised standards; and verification that the test result is reliable evidence of deception. Bear in mind that your polygrapher will charge an additional fee for appearance at arbitration.
What to expect
The usual polygrapher will put an extremely limited set of questions to employees. Make sure that he or she is properly briefed with the facts of the alleged misconduct so that they can put accurate questions to their subjects. During the test, an employee will usually answer only “yes” or “no”, and the result will simply be “deception indicated” or not. Do not expect an in-depth interrogation or more substantial answers. Some polygraphers are proficient in misconduct investigation, however, you will have to specify that you require their assistance in this regard over and above the polygraph test.
Refusing a polygraph
Employees might refuse to undergo testing. Naturally, this can lead to an assumption that they have something to hide. Be wary of placing too much store in this. An un-cooperative attitude is not proof of misconduct. If your employment contracts expressly oblige employees to undergo testing; remind them of their obligations. If there is other evidence to suggest the employee might be involved in misconduct; caution the dissenter that they are committing insubordination. If you are still met with a blunt refusal: Move on. A polygraph alone is not grounds for fair dismissal. Focus your attention on finding weightier evidence such as witnesses, video, audio and documentary records. Once you have surveyed the evidence you may find that a polygraph is unnecessary.
Final thoughts
Do not place too much emphasis on the polygraph result itself. It’s natural to draw an inference from a result of “deception indicated” but this assumption will not persuade a Commissioner. We recommend that polygraphs be used during preliminary investigation into misconduct. They can usefully exclude the innocent or narrow your focus to the likely culprits. Once you’re focussed in the right direction your energy must be spent finding the full picture of the relevant evidence. Without it, you will not come to a defensible result.