POLYGRAPH TESTING: A HELPFUL TOOL OR INFRINGEMENT OF AN EMPLOYEE’S RIGHTS?

Thank you for the feedback I have received on my request for input regarding this subject. Most of the responses I will deal with herein.

‘Lie detector tests have become a popular cultural icon – from crime dramas to comedies to advertisements – the picture of a polygraph pen wildly gyrating on a moving chart is readily recognised symbol. But, the idea that we can detect a person’s veracity by monitoring psychophysiological changes is more myth than reality. Even the term ‘lie detector’ used to refer to polygraph testing, is a misnomer…..Psychologists agree that there is little evidence that polygraph tests can accurately detect lies’.

-         Dr. Leonard Saxe, PhD, American Psychological Association in a publication entitled ‘The truth about lie detectors’

Polygraph testing, also referred to as lie detector testing, is being relied on in different scenario’s. There are in essence two different types of polygraph tests:

·        The Control Question Test (CQT): This test consists of ‘relevant’ questions related to a specific incident under investigation combined with ‘control’ questions. Control questions relates to misdeeds that are similar to those being investigated, but refer to the subject’s past, and are broad in scope; and

 ·        The Guilty Knowledge Test (GKT): This test consists of multi-choice test with items concerning knowledge that only a guilty subject would have. With a sufficient number of items, a psychometrically sound evaluation should be developed.

As the feedback I have received suggested, polygraphs are sometimes correct, and has the effect that the subjects may sometimes admit to wrongdoing prior to the test being administrated. I agree that this is a useful tool during the investigating process.

It is however imperative to note that the polygraph industry in South Africa is not regulated through any legislation. As it currently stands, anyone can purchase a polygraph machine, do a short training course, give him/herself a ‘fancy’ title, and purport to be a polygraph ‘expert’. No formal qualifications are required to do- or act as a polygraph expert.

It is also important to note that according to polygraph experts, the polygraph tests relies exclusively on psychophysiological reaction of the body, and according to numerous polygraph websites, this had been extensively researched, documented and scientifically proven. I will revert back to this statement later herein.

I am of the opinion that it is a gross misperception to conclude that a polygraph test was successful and had a positive result. No polygraph testing can ever have a positive result given the harm it causes to the innocent employees being tested. Surely, to submit innocent people, and even more so senior employees with whom the employer is supposed to maintain a high trust relationship, to be subjected to a polygraph test, will inevitably negatively affect the trust relationship. To what degree it will damage the relationship, I will deal with later herein. Furthermore, given the hard-scientific facts related to polygraph testing, which I will deal with herein, I respectfully have to strongly question the reasons why someone would still risk making use of a polygraph test, or base any value whatsoever on its results.

POLYGRAPH TESTING AND ITS SCIENTIFIC VALUE[1]

a)     There is no evidence whatsoever that any pattern of physiological reactions is unique to deception;

 b)     Polygraph research has to date been unable to separate the test subject’s belief in the efficacy of the procedure from the actual relationship between deception and their physiological responses;

 c)     Research evidence suggests that CQT detect deception better than chance, but with significant error rates, both of misclassifying innocent subjects and failing to detect guilty individuals;

 d)     Research evidence furthermore suggests that several examiner, examinee, and situational factors influence test validity;

 e)     There is very little research on the effects of the subject’s differences in factors such as education, intelligence etc. on the test results;

 f)      Evidence indicates that the use of pharmacological agents that alter arousal patterns (i.e. blood pressure medication) will influence the test result;

 g)     Research had opted to rather concentrate efforts in how to detect deception through new approaches away from the polygraph test, as these approaches are more specific to detect deception such as autonomic physiologic indicators and functional brain imaging. Without a better theoretical understanding of the mechanisms by which deception functions, development of a lie detection technology seems highly problematic;

 h)     The National Academy of Science (USA) had found that the majority of polygraph research, which the American Polygraph Association relies on, is unreliable, unscientific, biased, and significantly flawed.

USE OF POLYGRAPH TESTING INTERNATIONALLY

a)     In the United States Supreme Court v. Scheffer 1998 and subsequently, the US Supreme Court continued rejecting polygraph evidence because of its inherent unreliability, despite the US having legislation in place to regulate polygraph testing;

 b)     In Canada, the police force may use polygraph testing during the course of investigations. However, in R v Beland, the Supreme Court of Canada rejected the use of polygraph results as evidence in court;

 c)     In European countries, polygraphs are generally not considered reliable evidence and is widely seen to violate the right to remain silent. As recently as 2017, both the Supreme Courts of Germany and that of the Netherlands had rejected the use of polygraph testing;

 d)     In Australia, a judge rejected a polygraph test as, amongst other factors:

- The test purported to be expert evidence by the witness who was not qualified as an expert, he was merely an operator and assessor of a polygraph. The scientific premises upon which his assessment was based, had not been proved;

- Polygraph testing is devoid of any proved or acceptable scientific basis, and the evidence of the polygraph machine operator is hearsay which is inadmissible.

I will return to the findings in this case in comparison to South African case law later herein.

EXAMPLES OF SERIOUS FLAWS IN POLYGRAPH TESTING

There are a number of cases where the guilty party passed several polygraph tests such as Karl Koecher, (a Czech spy for Russia in America), Leandro Aragoncillo, and the ‘Green River Killer’, who passed numerous polygraph tests.

Then there are also a number of cases where the innocent party failed polygraph testing repeatedly such as Bill Wegerle (Wichita, Kansas 1986) who was accused of killing his wife. Years later during 2004, DNA evidence confirmed that Dennis Rader was in fact the killer, and not Mr. Wegerle.

I am no expert in the field of the law of evidence, neither am I a criminologist or phycologist, but having read material published by highly qualified- and highly regarded individuals in the fields of phycology, psychophysiology, and polygraph testing, it is very clear that due to its extreme limitations, and potential for causing extreme harm, polygraph testing should not be accepted during any legal proceedings under any conditions.

CURRENT PRACTICES

In South Africa, testing of employees is not regulated through any legislation nor any Code of Good Practice. The employer may therefore enforce such testing at the employer’s discretion and/or as contractual obligation as being part of the terms and conditions of employment.

We first need to look at the current practice related to polygraph testing within the labour judice prudence:

a)     Contractual obligation:

It is common for employers in the security industry to include in the contract of employment, a provision in which the employee agrees to be submitted to polygraph testing when so required by the employer, and that a refusal to do so would be regarded as a failure to comply with the terms and conditions of employment (misconduct) on the part of the employee.

 b)     Request by employer:

There are also instances where employers may merely (in the absence of such a contractual obligation) request the employee/s to undergo polygraph testing. This would normally happen after an incident occurred which has a ‘criminal connotation’ to it i.e. theft.

 c)     As condition prior to employment:

Some employers may only employ an employee on condition that the employee pass a polygraph test. This is most common with intelligence services worldwide.

It would be common practice, where an employee refuses to undergo a polygraph test, for the employer to then suspect such an employee as being the guilty party of the incident which resulted in the reason for conducting the polygraph test and/or some other misconduct. This unreasonable suspicion on the part of the employer has a serious negative effect on the trust relationship on which the employment relationship is based. This is not caused through any wrongdoing on the part of the employee, but rather the employer’s unfair prejudices.

Before exploring the possible consequences of these unfair prejudices, lets explore current case law:

SOUTH AFRICAN CASE LAW   

There is a (limited) number of available case law at my disposal, and even then, the issues argued are specific, and the judgements limited in its contents to address only those specifics. It is evident from existing case law that even our courts are divided in opinion when considering the appropriateness and value of a polygraph test. For purposes of my argument, the following three judgements will suffice:

a)     In Truworths Ltd v CCMA & Others (LC) 1 August 2008 Case No: JR789-07, Basson J addressed several aspects related to polygraph testing. She also referenced extensively in her judgement. The court made several observations in the judgement. At paragraph 36 of the judgement, it stated inter alia that:

 ‘It is accepted that a polygraph is a controversial method of gathering information and that opinion is divided on the probative value of the results’.

-Basson J

The court, at paragraph 36 of the judgement and quoting Professor Grogan in Sosibo & Others / CTM (Ceramic Tile Market) [2001] 5 BALR 518 (CCMA), acknowledged the following:

 i.           In some cases, our courts held that polygraph test cannot be submitted into evidence;

In my opinion, this would be the correct approach.

 ii.           In other cases, our courts held that polygraph tests cannot be submitted into evidence where there is no evidence on the qualifications of the Polygraphist[2], and where the Polygraphist was not called to give evidence;

In this instance, it must be noted that the Australian High Court clearly stated that the evidence of the Polygraphist alone cannot be regarded as ‘expert evidence’.

 iii.           In other cases, it was held that polygraph tests are admissible as expert evidence [3] but that polygraph test results, standing alone, cannot proof guilt;

In this instance, the Court seems to accept the Polygraphist as being an ‘expert’ in the field merely because this individual can explain how the polygraph works and how the questions derived at the result. This would, in my opinion be a very distorted view given the reasons in the Australia judgment supra for rejecting the evidence of the Polygraphist.

 iv.           In another case, the CCMA upheld the dismissal of an employee based only on polygraph tests results submitted (and accepted) into evidence;

Given the facts set out herein, this practice would be grossly prejudicial towards any employee.

 v.           In other cases, our courts held that where there is other supporting evidence (collaborating evidence), polygraph tests may be taken into account.

If other supporting evidence is available, and given the fact that labour disputes are determined on a balance of probabilities, why would one then still need a polygraph test?

 b)     In an unreported matter, in Anthony Conway v Fidelity Cash Management Services (CCMA) 2005, the Commissioner found that polygraph testing is an invasion of privacy and that the employee was not unreasonable in refusing to undergo the polygraph test despite a contractual obligation to do so.

 The arbitration award, in favour of the employee, was upheld by the Labour Court. The matter then proceeded to the Labour Appeal Court. In Fidelity Cash Management Service v CCMA and Others (LAC) 2007 (unreported?) Case No: DA 10/05, Zondo JP (as he then was) did not specifically pronounce on the statement made by Commissioner Pillemer that polygraph testing is an invasion of privacy, as the court was not required to do so. The Court did agree with the Commissioner that the employee did not act unreasonable by refusing to undergo a polygraph test, and the appeal was dismissed.

 PURPOSE OF POLYGRAPH TESTING

It is common cause that there is only one single reason for an employer to conduct a polygraph test, and that is to detect deception. Where this is done in a group after an incident, the employee with the highest deception indications, would be regarded as having ‘failed’ the polygraph test, and will in all probability be regarded as the ‘guilty’ party having committed the offence which resulted in the need for polygraph testing.

The practice of polygraph testing is clearly therefore solely to determine who is the guilty party, and to eliminate possible innocent employees. From the feedback I have received, confirmed the practice that where an employee refuses to undergo the polygraph test, the employee is ‘automatically’ regarded as the ‘guilty’ party. This is an incorrect perception which is plainly wrong. I have dealt with employees who stated categorically that if an employer wants to perform a polygraph test on them, the employer is in breach of the trust relationship, and that they will rather resign than to be humiliated in this manner.

ARGUMENT FOR PROHIBITING THE USE OF POLYGRAPH TESTING

Admissibility as evidence in any proceedings: As already mentioned, our courts are divided on this issue. According to the latest research by experts as quoted above, polygraph testing has very little scientific value. This then being the reason that the High Courts in several countries recently refused the admission into evidence in any form of polygraph testing results. This decision was derived at after considering expert evidence.

It must be noted that in some cases our courts have held that the polygraph test may be admitted into evidence where the Polygraphist testifies as an ‘expert’, despite the Australian High Court found that the individual conducting the test and evaluating the results, is by no means a scientific expert, and the evidence submitted by such an individual cannot be regarded therefore as ‘evidence by an expert’.

As polygraph tests are therefore not based on scientific fact, the manner in which it operates- together with the manner in which a result is derived at, is highly questionable and could be described as the detection of the person most nervous to undergo the test. Such a determination does not necessarily mean that this person is the guilty part, hence the rate of errors. Is it then fair for an employee to be branded a liar or a criminal for failing such a test? Is it fair that an employee becomes the ‘prime suspect’ in criminal wrongdoing for failing such a test? I am sure that, when a South African court is presented with the facts from the latest research, our Courts will follow the judgments of that of recent High Court judgments worldwide.

By requesting an employee to undergo a polygraph test as part of the employer’s investigation into an incident, clearly implies the employee is suspect in the incident, regardless how ‘nice’ the employer wishes to phrase the reasons for the test. It is simple, if the employee is not suspect, there is no reason why the employee should comply with the employer’s request as was found in the Fidelity case. Should the employee comply with the employer’s request and ‘pass’ the polygraph test, I would suggest that a clear inference can be made with the explanation for the reasons of the judgment in Mahlangu (supra), and that the same principles could be applicable regardless of the fact that the employee had not been charged with an offence. By suspecting the employee and requesting the employee to undergo a polygraph test, by implication accuses the employee of a suspected wrongdoing. In this instance the polygraph operator may substantiate the employer’s suspicion or clear the employee as a suspect. This is what the chairperson of a disciplinary hearing will also do during a disciplinary hearing. In either procedure, the employee’s character and/or reputation had been tarnished which would entitle the employee to compensation – R640 000 in the case of Mahlangu. At least disciplinary hearings are based on factual evidence despite being determined on a balance of probabilities. Furthermore, disciplinary hearings are legislative obligations to give effect to the audi interim partum rule. We have already established that polygraph testing is not based on scientific (or any other) fact which could, considering the Mahlangu judgement, have far more serious consequences for the employer. Polygraph testing is far from a legislative prescribed procedure and serves no purpose other than the trust relationship being destroyed – by the employer, which could arguably give rise to a constructive dismissal dispute.

Given the findings of the latest polygraph testing research, it makes no sense that anybody could still rely on a polygraph test result. It can be compared to an employer requiring from an employee to consult with a psychic, as neither are based on sound scientific principles or fact. I am sure it would be unacceptable to our courts that such a provision, that an employee consults with a psychic, is included in the terms and conditions of employment, and the time is overdue to view polygraph testing in the same light – given the evidence.

LACK OF GUIDELINES / LEGISLATION

The CCMA published guidelines on the use of polygraph testing, which is clearly largely based on American legislation. This is a step in the right direction but may be outdated given the latest research and trends internationally. Unfortunately, employees cannot afford this type of expert evidence required to exonerate the employee and will go through the same hellish experience Mr. Bill Wegerle did. The question every employer will have to ask him/herself, is if this is a fair practice and worth the risk that an employee’s life could be destroyed whilst being innocent? I don’t want this on my conscious.   

[1] According to Dr. Leonard Saxe

[2] My emphasis

[3] My emphasis