Participating in or being subject to a workplace investigation can be a difficult and distressing experience, and may well take a toll on an individual’s mental health and wellbeing. These risks are perhaps even more pronounced now, with many employees working in new ways and dealing with the financial, physical, emotional or other strains and uncertainties of living through the pandemic. Employees are likely to be missing day-to-day contact with loved ones, colleagues and other support networks. This may lead to a dip in confidence or a sense of isolation, which being involved in an internal process (potentially involving criticism of their conduct or performance) could exacerbate.
When responding to allegations and conducting workplace investigations, employers must do all they reasonably can to support those involved and ensure staff are protected from discrimination. This means being mindful of their employees’ mental health (which could amount to a disability) and taking reasonable steps to accommodate any identified needs and mitigate against any negative impacts of the investigation.
Such steps should not impact on the fairness of the investigation itself. Conducting a fair and thorough investigation in response to allegations is an important part of ensuring a safe and supportive work environment for everyone. An employer must not bypass or water down proper process in order to avoid difficult conversations or situations.
How to support mental health when conducting an investigation
These are some of the things you should think about to help support the mental health and wellbeing of employees involved.
Signpost to support early on.
Acknowledge at the very outset of an investigation that it may be a difficult time for the employee. You should make it clear that if they have any concerns about their wellbeing, they should speak up. This could be directly to HR, to someone else at the organisation, or externally. You should sign-post employees to suitable support available, e.g. the employee assistance programme, mental health first aiders, or other counselling or support services (be they internal or external). Reminding employees throughout the process that these resources are available is helpful.
Assign a contact point.
It is common for employees to be assigned a specific pastoral contact point who is not connected with the investigation, with whom they can discuss concerns and needs. You might ask that person to check in with the employee from time to time during the process. If practical, you could see whether the employee has a preference as to who that should (or should not) be, and how they would like to be contacted.
Seek expert health advice.
You are not expected to be a mental health expert but you are expected to seek relevant professional advice and support, where reasonable to do so. If you have concerns about an employee’s mental health and the impact an investigation may have, it is advisable to seek advice from Occupational Health (with the consent of the employee) about whether the employee is able to participate in the process, and what adjustments might be needed to facilitate their participation. You should consider any recommendations made in consultation with the employee. For some more complex conditions you can seek additional advice from a relevant specialist medical practitioner.
Stay in touch and answer questions.
Keep participants informed about the next steps and what they will involve, be transparent about timetables (and delays) and share information (where possible). This will help reduce uncertainty and anxiety connected to the process.
Consider reasonable adjustments and keep under review.
These should be discussed with the individual and could include, for example, allowing breaks during interviews, providing questions beforehand, allowing written responses or permitting a partner or spouse to attend a meeting. An employee’s needs may change during the process so you should keep any adjustments under review.
Impact on outcome?
It is important to take into account what impact an individual’s mental health may have had on the conduct under scrutiny in the investigation, and how it might influence next steps, for example, recommendations or disciplinary steps. This can, of course, be a delicate assessment, and it is advisable to be informed by professional medical advice where possible.
There is a wealth of guidance out there on dealing with mental health in the workplace. The ACAS guidance on "supporting mental health in the workplace", is a good starting point and includes some practical tips on managing someone with signs of a mental health issue, which could be transferred into the investigation context. The charity MIND also offers online resources and training.
If the investigation is being carried out by an employee, it is important to consider their mental health too; it is an important and demanding role which may involve distressing facts and they may need their own support. This is particularly important when the investigation is being carried out remotely.
Each case is individual. There are many issues to consider and you should respond to the specific needs of the investigation and those involved, and seek advice when needed.
Our Employment team has many years’ experience handling complex and sensitive workplace investigations acting for employers, employees or, indeed, carrying out the investigation as an independent team. Our range of investigation services and work examples are contained in our investigations brochure: please see here. Please do not hesitate to contact Kathleen Heycock, Maria Strauss, Sophia Coles, or your usual contact in the team if you have any questions about investigations.
This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
© Farrer & Co LLP, January 2021