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New EHRC harassment guidance: Trauma Informed investigations

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Following publication of the new EHRC technical guidance on sexual harassment in the workplace, we look at what the guidance means for conducting workplace investigations and specifically "trauma-informed investigations".  

The guidance says the following:   

Conducting investigations

  • Thorough investigations: investigate all complaints promptly and thoroughly, ensuring impartiality and confidentiality
  • Training: ensure that those conducting investigations are trained in handling sensitive issues and understanding the impact of trauma.

Our previous blogs are helpful in explaining how to conduct thorough investigations. This briefing looks at conducting "trauma-informed" investigations.  

What is trauma?  

It is how the body and mind react to a perceived threat, which is often linked to a past traumatic experience. These responses are survival mechanisms controlled by the nervous system, designed to protect you in moments of danger. There are four common types of trauma responses:

1. Fight

  • This response involves confronting the threat aggressively.
  • Examples: physical actions like kicking or punching, verbal outbursts, or being argumentative. It can also manifest as quick anger or irritability.

2. Flight

  • This involves escaping or avoiding the threat.
  • Examples: physically leaving a stressful situation, avoiding certain places or people, or engaging in activities like excessive exercise or substance abuse to avoid emotions.

3. Freeze

  • This response involves becoming immobile or “playing dead.”
  • Examples: feeling stuck or unable to move, dissociation, or binge eating as a way to cope with overwhelming emotions.

4. Fawn

  • This involves trying to please or appease the threat.
  • Examples: people-pleasing behaviours, over-apologising, or being overly accommodating to avoid conflict.

Running trauma-informed investigations involves a sensitive and empathetic approach to ensure the wellbeing of all parties involved, particularly those who may have experienced trauma. 

Key steps to conducting such investigations:

1. Preparation and training

  • Educate investigators: ensure that investigators are trained in trauma-informed practices, understanding the impact of trauma on memory and behaviour.
  • Build knowledge: familiarise yourself with the specific trauma-related issues relevant to the investigation.
  • Conduct a risk assessment for the investigation mapping out any potential risks to individuals of proceeding with the process and the mitigation that can be put in place.  

2. Creating a safe environment

  • Ensure safety: prioritise the physical and emotional safety of all participants. This includes choosing a comfortable and private setting for interviews.
  • Support systems: provide access to support persons or counsellors who can assist the interviewee throughout the process.

3. Conducting interviews

  • Empathy and respect: approach interviews with empathy, patience, and respect. Allow the interviewee to share their story at their own pace.
  • Minimise re-traumatisation: use open-ended questions and avoid leading or confrontational questions that could re-traumatise the individual.
  • Consent and control: ensure that the interviewee feels in control of the process. Obtain informed consent and explain each step of the investigation.

4. Gathering information

  • Listen actively: pay close attention to the interviewee’s words and non-verbal cues. 
  • Document carefully: record information accurately and sensitively, ensuring that the interviewee’s narrative is respected and preserved.

5. Post-interview support

  • Follow-up care: provide resources and referrals for ongoing support and counseling if needed.
  • Feedback and transparency: keep the interviewee informed about the progress and outcomes of the investigation, maintaining transparency throughout the process.

6. Self-care for investigators

  • Manage vicarious trauma: investigators should be aware of the potential for vicarious trauma and take steps to manage their own wellbeing.
  • Regular debriefing: engage in regular debriefing sessions with peers or supervisors to process the emotional impact of the work.

By following these steps, investigators can conduct thorough and compassionate investigations that respect and support individuals who may have experienced trauma. This should go some way to help an employer discharge its duties under the new harassment guidance and law.  

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, October 2024

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About the authors

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Maria Strauss

Partner

Maria advises a broad spectrum of clients including private companies, not-for-profit organisations, independent schools, banks, sports clubs, Churches and faith-based organisations on employment law and safeguarding matters.

Maria advises a broad spectrum of clients including private companies, not-for-profit organisations, independent schools, banks, sports clubs, Churches and faith-based organisations on employment law and safeguarding matters.

Email Maria +44 (0)20 3375 7259
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