PEACE OF MIND - Psychological safety in the context of investigations: what needs to change?
As regulators become increasingly concerned with psychological safety, as well as broadening their remit to include non-financial misconduct in the workplace, how does this affect the way in which investigations should be conducted in order to: (i) safeguard the wellbeing of the people involved; and (ii) support employees to give their best evidence when questioned?
Investigations might be seen as a legal process but they are all about the people: Who was involved? What did they do? Why did they do it? What are they going to say about it? How will they recover from it? With this mind, it is important to ensure that the human aspects of an investigation are navigated with care and sensitivity alongside the legal complexities.
The growing emphasis on culture and psychological safety within the workplace naturally needs to include the psychological safety of employees conducting the investigation, as well as those being interviewed.
It is important to ensure that the human aspects of an investigation are navigated with care and sensitivity alongside the legal complexities.
Regulators have also been broadening their remit to include cultural issues such as sexual harassment and bullying in the workplace. This increases the risk of employees needing to be involved in investigations with sensitive subject matters that may cause distress, or otherwise impact upon psychological safety.
Why does this matter?
- The interpersonal dynamics of investigations can be particularly difficult and often have long-running repercussions, both at an organisational and individual level. For example, failing to handle an investigation in a sensitive manner can generate confusion and mistrust amongst employees and may negatively impact morale, thereby impacting physical and mental health, as well as overall productivity, business efficiency and employee retention.
- With regulators increasingly becoming concerned with these dynamics, it may not be long before we see the investigation of an investigation i.e., a firm’s own internal investigation being scrutinised by regulators in respect of, for example, diversity and inclusivity or psychological safety failings.
- Regulatory landscape aside, we are also seeing an increase in litigation and employment claims as employees feel empowered to identify and challenge the impact of insensitive handling of investigations.
- Furthermore, there has been sustained lobbying for organisations of a certain size to be required to report on employee health and wellbeing. As we’ve seen within the broader context of ESG, increased scrutiny is the direction of travel and it pays to be ahead of the curve.
- Last but not least, at an individual level, in order to ensure that an individual is able to give their “best evidence” (thereby contributing to the integrity of an investigation), it is vital that they are mentally, emotionally and physically equipped to do so.
What needs to change?
Investigations, more often than not, bring with them a minimum level of stress and difficulty for those involved. We know that employees are currently suffering some of the highest stress levels in recent years; our knowledge and understanding of wellbeing within the workplace, including when asking employees to be involved in investigations, needs to respond to this.
In order to ensure that an individual is able to give their “best evidence” it is vital that they are mentally, emotionally and physically equipped to do so.
In the context of criminal proceedings, updated guidance was published by the National Police Chiefs’ Council in early 2022 setting out how to interview victims and witnesses, particularly those identified as vulnerable in some way, to achieve “best evidence”.[1] Should we not be applying similar guidance and care to investigations where (i) individual vulnerabilities have been identified and/or (ii) the investigation involves a sensitive subject matter?
What does this look like as a minimum?
- Awareness. Do your internal and external teams have sufficient knowledge and awareness of wellbeing, mental health and psychological safety to be able to identify and communicate around the complexities that may be present?
- Risk assessment. Are you able to identify and respond to a need for adjustments to mitigate potential risks to an employee’s wellbeing? In many instances, this will require specific training and experience (for example, trauma-informed ways of working), such as that offered by our Sensitive Investigations Group, in order to navigate the human and legal complexities both safely and effectively.
- Empowerment. Most of us can relate to the fact that intimidation and stress may affect our ability to recall and communicate information effectively. So, how can you support an individual to feel empowered to give their “best evidence”, in the context of any investigation?
- Support. We see a move towards firms seeking appropriate external support – particularly support that spans the intersection of the legal and the human aspects of investigations – as being key to mitigating the risks in this context. What support do you have in place and where are the potential gaps?
CONCLUSION
The approach to investigations needs to be brought in line with all that we now know about wellbeing, and psychological safety. To increase awareness and sensitivity in your investigations, both by internal teams and external counsel, consider how you can better mitigate risks and support your people to navigate investigations in a way that (i) safeguards their own wellbeing; (ii) enables them to engage fully; and (iii) retains their commitment to your business.
[1] Achieving Best Evidence in Criminal Proceedings, Ministry of Justice
