Polygraph tests play a major role in investigations in the US and in recent years have started to be used in the UK, but usually in respect of criminal investigations. We think there is a case to say they have a place in the employment sphere too. Particularly in issues relating to dishonesty, deception or stealing confidential information.
The idea behind polygraph testing is that it records activity in the “autonomic” nervous system of those undergoing the tests. That nervous system – said to be largely outside our conscious control – reveals a stress reaction, which can be measured by skilled examiners.
TS&P talks to Patrick Mellody a Director of the British and European Polygraph Association (BEPA), founder of Polygraph1UK Ltd and an associate at digital evidence experts James Taylor about the growing use of polygraph testing in employment disputes:
TS&P: How does your polygraph testing work?
PM: Polygraph testing records the physiological changes occurring in the body as questions are asked. Sensors are attached to the individual’s chest, arm and fingers that monitor breathing, cardio response and hand movements. These detect the changes in the body when a lie is told.
TS&P: Who decides which questions to ask?
PM: The test questions are formulated after a discussion prior to the actual test. I will have already received a background to the dispute by the time an individual comes to me and have an understanding of what the issues are. The employer will give me a number of questions to ask during the test.
I run through these with the individual beforehand as I want to make the person as relaxed as possible to ensure the process is as easy as it can be. There are normally four questions per test.
TS&P: How long does the testing take?
PM: It normally takes between two and three hours by the time I’ve gone through the questions with the individual, explained the process, linked them up to the kit and asked the questions.
TS&P: How many people are in the room during the test?
PM: Sometimes both a representative of the employer along with the examinee are present before the test. We run through the questions and talk about the issues. Other times it might just be the examinee. During the test, the examinee has to be on their own so that there are no distractions. We normally hire a private meeting room for this.
TS&P: What types of employment dispute do you think this method is useful for?
PM: We have dealt with many cases where property has gone missing – this can be data or actual goods. Recently a large chain of jewellers asked for our assistance after stock went missing and they wanted to see if any of their staff were responsible.
More and more we are seeing people taking sensitive data with them when they leave a company. Increasingly the employer finds itself in the position where it has to choose whether to accept the employee’s explanation as to what they have done with the data.
Often the forensic expert provides the proof, but the employer simply does not believe it. For example, sometimes it’s impossible to tell how many times a USB stick has been copied. Polygraph testing can provide the employer with the further assurance it needs to resolve the dispute.
TS&P: Are there any particular types of industry that are more likely to engage in this process?
PM: At the moment our services are more popular with forward thinking clients such as technology companies. However, polygraph testing is being used by a whole range of sectors and can benefit any business that has property or information to protect.
TS&P: What about if an employee refuses to take the test? Does that mean they are guilty?
PM: It is for employer’s to draw their own conclusions. They should see polygraph testing as an investigative tool that forms part of an enquiry.
TS&P: Many of us saw Brody trick the lie detector test in Season One of Homeland. Is this actually possible?
PM: Many people try to cheat the test with counter measures. My job is to make sure that doesn’t happen. It is a very accurate piece of equipment used by law enforcement throughout the world. The accuracy of this test depends on the accreditation and training received by the person who is undertaking the examination. If the interviewee tries to obfuscate the test, then we will know, and they will have failed the test. It’s about as close as you can get to knowing the truth for certain.
As far as we are aware, there have not yet been any cases where polygraph tests were used in the employment tribunal and there does not appear to be any case law or practice directions on whether the results of the test would be admissible. The general rule of evidence in civil proceedings is that evidence which is relevant is, in principle admissible. Ultimately the judge will decide what evidence to admit, and he may choose to exclude evidence which would otherwise be admissible if it would be unfair to allow it in. If an employee consents to a polygraph test we do not see why there should be any objection to admitting it as evidence.
The value of considering polygraph testing could be substantial in terms of cost benefit and could prevent claims reaching the tribunal or the courts.
If this is something you think you or your business might be interested in, the please email email@example.com for further information.