Polygraph testing is a method that can be used to verify a person’s honesty and truthfulness in a specific situation and is often also referred to as a ‘Lie Detector Test’.
Is it legal to use polygraph testing as an employer?
It is a commonly accepted practice that employers are permitted to make use of polygraph testing to investigate specific incidents, where:
- the property of the employer was damaged or misappropriated and the suspected employee/s had access to the premises where this incident took place;
- there is a reasonable suspicion that an employee/s was involved in the incident; and/or
- The employer suspects fraudulent documents and dishonesty regarding any misconduct at work.
Rules for test to be admissible in court and the CCMA
An outcome of a polygraph test is merely an investigative tool and polygraph results should be used primarily to assist investigators in narrowing investigations by identifying potential suspects and collecting information relevant to the investigation. There is nothing prohibiting or preventing the submission of polygraph results in a court such as the Labour Court, but it is only considered to be of value when the results validate other admissible evidence which will assist the Court in reaching a verdict.
The level of acceptance and weight attached to the polygraph examination results also depend on the experience, credibility and qualifications of the examiner as well as the ”integrity” of the process followed in conducting the test.
The following are some of the requirements to prove the “integrity” of the polygraph process:
The individual being should be informed that:
- The examination is voluntary or the employer should have consent from the employee to conduct the test;
- The questions which is to be asked during the test, should be discussed and explained prior to the polygraph test;
- The employee should be informed of the right to have an interpreter, if necessary;
- No threats should be made, and no inducements promised to secure the employee’s participation in the polygraph test.
The Polygraphist conducting the test should have been trained at a polygraph training facility accredited by the Southern African Polygraph Federation (SAPFED) and should be a member in good standing.
What does the law say?
Firstly, the employer may not force an employee to submit to such a test. Refusal to do so does not indicate guilt and no negative inference may be drawn from an employee’s refusal. The employer must obtain written consent from the employee to conduct a polygraph test, except in instances where the employee’s contract of employment already provides for such consent.
Secondly, it is advisable that the employer should review the questions to be asked before the test. The questions should not be vague, otherwise the employer would deal with answers that might be irrelevant to its investigation. Experience has shown that questions should be “short and punchy” and each one should only deal with one aspect of the suspected misconduct.
In order to comply with the Labour Relations Act’s basic principle of fairness; a polygraph test must be applied neutrally to a group of employees and should be conducted by a professionally qualified practitioner using high quality calibrated equipment to ensure it is scientifically valid and as reliable as possible.
Employers are urged to contact a reputable labour law advisor to ensure all requirements are complied with before considering to use this tool.