Recent cases have flagged how a workplace investigation can sometimes be damaging to the wellbeing of the participant[1].
Respondents are as much at risk as complainants. They can experience the decision to investigate and the investigation process as a challenge to their authority and position in the organisation or feel attacked personally. Research has also found that 50% of respondents took 1-2 weeks off work during the investigation because of anxiety, depression, stress or diagnosis of a specific psychological disorder[2].
At Worklogic, we are always mindful of the fact that investigation participants can at times experience anxiety, stress, shame, devastation, suicidal thoughts or depression. The emotional distress may manifest itself as physical impacts such as high blood pressure, panic attacks, chest pain or sleeplessness.
Given this, we have suggested these steps below to minimise the risk of such harm, and how to take a “do no damage” approach to investigative work:
1. Support the participants
“I am at risk”
In Hayes & Ors v State of Queensland, the Queensland Court of Appeal found that employers have a duty of care to provide adequate support to respondents during an investigation where a risk of a psychiatric injury, in the absence of such support, was reasonably foreseeable[3].
That risk may be reasonably foreseeable if the investigation is large and protracted. In assessing the risk and support required, remember that participants may not show obvious signs that they at risk, or may control that emotion during the investigation and while at work. This incongruence between their internal and external experience is extremely draining for the participants. It can also lead employers to falsely conclude that no specific support is required.
In Hayes case, although the court found that the existence of the duty of care in any particular case will depend on the foreseeable risk and specific circumstances (including the vulnerabilities of the relevant employee), and the mere fact of being under investigation is not enough on its own, it is always prudent to mitigate that risk in all cases by offering real support, even where it is not immediately apparent it is required. Ideally each respondent and complainant should have someone within the organisation who is able to explain the process and answer questions.
Although it is common practice for employers to offer free counselling to employees whose conduct is being investigated, such counselling will not of itself provide sufficient support to satisfy the duty where it exists. Best practice is to nominate a neutral person in human resources or another part of the business who can make contact to check on the welfare of the person without exacerbating the situation, and who can respond to enquiries about the progress of the investigation and with whom the participant can discuss any concerns.
That support person can check that the participant is able to access appropriate mental health care and if there is significant employee stress due to a workplace investigation, the support person can keep the Workplace Health and Safety team informed of their concerns.
2. Inform participants of the transparent and thorough process that you will follow
“The process was confusing and I did not understand what was happening!”
A good complaints policy will clearly describe the investigation process. Your investigation should rigorously follow that policy process. A deep sense of unfairness will infect your investigation if you fail to communicate and uphold these investigation steps.
Once a decision is made to conduct an investigation, usually it is the role of the manager or human resources to inform the parties and witnesses about the investigation process. Participants should be briefed (preferably in writing) as to the complaints made against them, possible outcomes (for respondents) and the investigation process. At the very least, the participants need to know what the process is, who will be impartially conducting the investigation, what will happen at the end of the investigation and a rough timeframe in which the investigation will take place.
It is good practice to check in with the participants to confirm they have understood and answer their questions at this stage because the investigation process is not always readily understood by those who are new to it. Any misunderstandings about what the investigation process can and can’t achieve should be addressed early. For example, it is common for complainants to have a misunderstanding that they can control the scope or timing of “their” investigation. It is important to explain that once an investigation commences, it is the employer’s role to appoint the investigator, to determine the scope and to decide what action will be taken afterwards.
Take any procedural objections seriously and address them directly when they arise. A commitment to procedural justice means that the process must permit the parties to express their views, their side of the story, to query and understand the process and have confidence that the investigator is not biased and both parties have been treated equally.
3. Proceed quickly and manage delays
“The process took too long, I have no idea why it took weeks to finalise”
Once the investigator is appointed and has control of the process she or he must maintain contact with both the complainant and the respondent and update them on the investigation process and reassure them as the process moves toward conclusion. Many participants underestimate how long it will take to interview the participants, collect and consider all the evidence, write an investigation report and for the organisation to consider the findings and make a decision about the outcome.
Maintaining contact is particularly important if the complainant or respondent have taken a period of stress leave relating to the complaint or their employment has been suspended. While you need to work within the recommendations made by an employee’s doctor, checking in with employees and informing all stakeholders of any delays due to ill health of a key participant can be a helpful way of managing the stress of the investigation process.
Don’t forget that although a week when conducting an investigation can fly by all too rapidly, for those waiting at home for news of what is happening, a week with no information is a very long time. The highest levels of stress often occur as you are approaching the end of the investigation and writing the report. Be sure to keep participants informed about when the investigation will be finished and when the organisation is likely to make and inform the parties about their decision as to next steps.
4. Confidentiality requirements must not leave parties isolated
“I wasn’t allowed to talk to anyone at work.”
Take care not to isolate employees who are being investigated by issuing overly restrictive communication protocols.
Although it is reasonable to ask that employees limit their discussions about the investigation so as to not compromise the confidentiality of the investigation (for example by not discussing their evidence or interview questions with other witnesses), any such direction must be reasonable in the circumstances and allow them to maintain their work networks and friendships. Participants should be expressly permitted to speak about the investigation to their support person, HR and other personal supporters.
5. Treat interviewees respectfully
“I felt like I was being interrogated by police!”
Perceptions of injustice or unfairness in the process will lead to increased levels of psychological distress and non-acceptance of outcomes. An investigator who empathetically and carefully listens to every participant can demonstrate a clear commitment to providing each participant with a just and fair opportunity to put their evidence on the record. Attempting to frighten, trick or threaten a participant will lead to distrust and fear, and rarely elicits reliable or complete evidence. To the contrary, the best quality evidence is usually collected when participants are treated with respect and empathy and when the investigator gives them their full and undivided attention during their interview so that their perspective is heard and understood.
Simple steps can demonstrate your respect for each individual, for example when you clearly explain your investigation process and permit the participant to ask you any questions or when you offer regular breaks as required during the interview.
6. Work to restore confidence and trusting relationships after the investigation if the participants are expected to work together
“I’m looking for another job now, my heart’s not in this role anymore”
Underperformance, post-investigation, can lead to heavy costs to the workgroup and organisation itself. If an employee is suspended pending the completion of the investigation, it should be made absolutely clear to them that temporary removal from the workplace is not a prejudgment of their guilt and that their return to the workplace will be supported with appropriate communication.
Respondents often report loss of confidence in their abilities in their role and in their working relationships after an investigation but many mask their severe emotional distress. This can lead to a failure by the organisation to recognise the need to offer support, coaching and mentoring for respondents following investigation. Equally, complainants whose complaints have been investigated and found partially proven or not proven do feel very vulnerable after investigation. It is best practice to assume that all participants will require support after investigation in order to rebuild productive and harmonious relationships. Such support may be required for some time and may include team re-building activities, ongoing support or mentoring from a neutral third person or mediation between the parties to the investigation to clarify and establish the basis for their future working relationship.
References:
[1] For example, Hayes & Ors v State of Queensland [2016] QCA 191
[2] Jenkins, Moira et al, Consequences of being accused of workplace bullying: an exploratory study, International Journal of Workplace Management, 4(1) (2011) pp.33-47
[3] Ibid n.1
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About Lisa Klug
With an outstanding reputation in litigation, research and management, Lisa Klug joined Worklogic from legal practice. Lisa has conducted more than 100 investigations into workplace misconduct for a diverse range of employers. She also undertakes workplace reviews, advises on employment policies and runs popular in-house training programs and workshops.
About Jodie Fox
Jodie Fox brings to Worklogic a wealth of experience gained working with clients from a diverse range of industries. Previously working as an employment lawyer at a top-tier law firm for almost 10 years, Jodie worked closely with a host of large and small clients.
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