“Hard on the problem, soft on the people”. It’s a well-worn leadership mantra, but does it have a place in investigations?
As an investigator, one of your primary goals is to ensure that you get the best evidence you can from all participants in your investigation. Being fair and objective does not preclude compassion.
What is ‘vulnerable’ in the context of an investigation, and how do you know that a participant may be vulnerable?
Vulnerability can take many forms in the context of an investigation. The Respect@Work: Sexual Harassment National Inquiry Report 2020 found that, in addition to gender, other factors may increase the likelihood that a person may be the target of sexual harassment, including: being young (aged less than 30 years), being lesbian, gay, bisexual, transgender, queer or intersex (LGBTQI), Aboriginal or Torres Strait Islander, living with disability, and/or being from culturally and linguistically diverse (CALD) backgrounds.
The factors that increase the likelihood of vulnerability are not only relevant to a complainant. They are also potential vulnerability factors for witnesses and respondents.
If that is the case, as an investigator, while you can’t always predict precisely whether a participant will be vulnerable you can plan for it, by assuming that any participant may be vulnerable, and thinking through how to support that person to get their best evidence.
Is an investigation the best option?
Investigations can be inherently stressful for the people involved, and one of the most important things you can do to protect the physical and psychological health and wellbeing of everyone involved, is to make sure that an investigation is necessary.
If the conduct being complained about, if proven, would not constitute a breach of policy, an investigation may not be the most appropriate course of action. Other options, such as mediation or conflict coaching, may be more effective, and although these processes are not risk free, they are gentler than investigations. Having said that, you should never choose not to investigate a complaint on the basis that you believe a person may be vulnerable.
Getting the basics right
It may seem overly simplistic, or event tokenistic, but ensuring you get the basics right, in terms of providing a comfortable, private space for an interview, and offering a drink of water to the participant, are important. Offering these considerations to every participant shows compassion, in a neutral way.
Be transparent about your role and your process. When participants are informed about what your role and process is, they are more likely to be comfortable with the process than if these things are left unclear.
Trauma informed investigation
In an article on trauma-informed practice, Rohman, Ingram and Watkins (2018) made the point that “many of our traditional interview approaches are critical to a trauma-informed approach, including building rapport, being transparent about our role, showing empathy, and posing neutral, nonleading questions”.
According to Rohman et al., when dealing with a participant who has experienced trauma, it is important to recognise that using traditional “where, when, what, how” questions may not elicit the best evidence from the participant.
Eliciting information in a different way, such as starting with a statement like “Tell me where you would like to begin”, and backtracking later to fill in gaps, can be far more effective than sticking to a rigid interview structure.
Trauma informed interviewing also means being alert to indicators that a participant may be feeling distressed and responding appropriately.
Responding to distress
It is possible and appropriate to respond to the distress of a participant without compromising your neutrality. You can and should make acknowledging statements such as “I can see you are affected; would you like to take a break?”
Cultural awareness and safety
If your investigation involves examining issues such as racism, or even if you simply need to interview someone from another cultural background, taking the time to ensure you are informed and able to meet any particular cultural needs of the participant is an important action to take in creating an environment in which you, as the investigator, will be able to get the best evidence from the participant. If in doubt, seek advice from an independent expert.
Reasonable adjustment
If a participant has particular physical or psychological challenges, it is entirely appropriate to seek advice from their medical provider (with permission) about how best to conduct the interview.
This may mean simple things like limiting interview duration, or even offering the participant the opportunity to visit the interview location before the interview, so that they can be more familiar with and comfortable with the environment before the interview takes place.
Utilising language interpreter services in circumstances where the participant’s first language is not English, or perhaps has a hearing impairment, are legitimate supports that should be provided where necessary to support an interview participant.
Ensuring access to support
As the investigator, you can’t provide support, but you can make sure that the participant is aware of the services available to them, including EAP services.
Ensure the participant knows and has access to a support person or representation, and if a person is vulnerable, consider having a conversation with their representative, for example, about how best to seek their response to contradictory evidence, which can be a very challenging process.
Workplace Investigations
We have two upcoming opportunities for you to learn about Workplace Investigations.
The Ask us Anything about Workplace Investigations free lunchtime webinar on Sept 24th is presented by our Sydney office team, and is your chance to ask questions about conducting a workplace investigation. You can register here.
Conducting Effective Investigations Online Training on Oct 20 & 21. Presented by Jodie Fox, discover how to conduct a procedurally fair, effective workplace investigation. You can register here.
About Angela Seach
Angela Seach is an experienced workplace coach, and brings substantial experience across the full spectrum of strategic and operational people and culture management functions in public and private sector organisations to Worklogic.
Prior to joining Worklogic, Angela was an accomplished senior organisational development manager with a significant track record in successfully driving outcomes in large, complex and geographically dispersed organisations, including the Country Fire Authority, Ansett Australia and Air New Zealand Engineering Services.
