Due to the nature of a polygraph exam, legal issues often arise and must be taken into account by any potential client
Just a few of many potential legal issues to note are as follows:
- If you are an employer you may want to consult an expert in labour law before making use of polygraph services. Although polygraph evidence can be used as corroborating or supporting evidence in a hearing or arbitration, polygraph evidence on its own is insufficient to dismiss an employee.
- No one can be forced to undergo a polygraph exam. It is and must always be done on a voluntary basis, with written consent, no exceptions. Even if there is a written employment agreement making provision for polygraph testing, a polygraph exam cannot be done without the co-operation and voluntary consent of the person to be tested.
- Any admission/confession made to a polygraph examiner during a polygraph exam will be recorded and may then be used as evidence later on in a hearing or arbitration. If proper procedures were followed, such an admission/confession may be considered as admissible evidence and could possibly carry significant weight in a hearing or arbitration.
- The polygraph exam is not meant to provide absolute proof of guilt or innocence, it is meant to provide investigative information, intelligence and/or corroborating/supporting evidence only.
- Only fair and reasonable test issues may be addressed. It would be unlawful and unacceptable to for example test an employee with regards to his/her religious beliefs, sexual orientation, lawful sexual behavior, trade union affiliation etc.
- If an employee is charged for misconduct and polygraph evidence is to be used, the polygraph examiner MUST be called to testify and to be available for cross-examination. Telephone and/or SKYPE testimony may also be used as long as the accused is afforded an opportunity to cross-examine the witness. Should the matter proceed to arbitration at the CCMA, please note that in terms of rule 37A of the CCMA RULES a notice must be provided to the CCMA and to the employee, seven days before the arbitration, informing them that an expert witness will testify.
- The Police will not normally arrest someone for failing a polygraph exam. The burden of proof in a criminal case is onerous and requires proof beyond a reasonable doubt. Polygraph evidence is based on a balance of probabilities.
- An employee who refuses to undergo a polygraph exam cannot normally be dismissed as a result of his/her refusal. However, if the refusal is unreasonable or in breach of a contract, further action may be possible against such an employee, depending on the precise facts and circumstances.