The investigation blind spot (employee wellbeing)

Consider a common workplace investigation scenario: An allegation is made, either via a whistleblowing channel or through the raising of a grievance which raises the prospect of significant wrongdoing potentially having taken place in an organisation. The alleged wrongdoing could relate to sexual misconduct, financial fraud or any other kind of financial or non-financial misconduct which carries significant risk for the company (financial, reputational or both). 

The company’s initial response is likely to be (as it should be) to launch an investigation into the matter, ideally having identified a close-knit team of managers and advisers who will be involved and have knowledge of the matter and protocols having been put in place as to how confidentiality , integrity of evidence and privilege will be best preserved. An investigator is appointed, terms of reference agreed and things get underway for the company to establish what has happened and whether there is a disciplinary case to answer and/or necessary regulatory action.

A critical matter that is often overlooked during this focused drive to establish the facts and move on is the wellbeing of those involved. That is, those who have raised complaints, those who are being investigated and also those interviewed as part of the investigation process. 

Why is this important?
Raising a complaint in the workplace or being the subject of an investigation (particularly into serious allegations, such as those involving sexual misconduct) is a very stressful, often traumatic experience. One should not underestimate the human element here and, for example, the thoughts and feelings that come into play when one first becomes aware that they are being investigated. 

How will the investigation or their absence (if they are suspended), be communicated to colleagues and business contacts? What will they say to their family and friends? What will they be asked in the investigation meeting and what should they say? What is the evidence against them? Could this mean the end of their employment or career and what would that mean in terms of their financial position? Could it lead to the end of their marriage/personal relationship? Even if they are vindicated, will they ever be able to get back to “normal”? All of these thoughts, on top of the general pressures of the job and everyday life and the uncertainty of the outcome throughout the process, can lead to one becoming vulnerable from a mental (and physical) health perspective or, if they are already vulnerable or have a history of mental health problems, becoming very ill. 

Employers have a common law duty to take reasonable care for the health and safety of their employees in the workplace. Failure to do so can leave an employer exposed to a personal injury claim under the tort of negligence. Such a claim would succeed if an employee can show that the employer has breached this duty of care; that that breach has caused them injury (a psychiatric injury (mental breakdown), for example); and that that injury was a reasonably foreseeable result of that breach. Employers should therefore consider the impact the investigation may have on the wellbeing of the employees involved and take steps to mitigate risk and offer support.

Other claims that could, depending on the circumstances, potentially be pursued by employees who become unwell (or more unwell) as a result of the investigation process and the actions of the employer include:

• Constructive unfair dismissal: An employee could argue this if they leave because they feel they have no other choice due to, they would argue, the behaviour of their employer amounting to a fundamental breach of the implied term of mutual trust and confidence. This could arise because the employer has not taken steps to assess and protect the wellbeing of the individuals concerned during the investigation process, or refusing to put in place adjustments requested by individuals to assist their mental well-being, resulting in them suffering from anxiety and other related conditions.
• Whistleblowing detriment: In the event that an individual makes a disclosure of information demonstrating wrongdoing or potential wrongdoing which amounts to a protected disclosure and is then subjected to detrimental treatment as a result, they could bring a whistleblowing claim against their employer. It is important to note here that the risk is not just of the complainant bringing such a claim but also, potentially, the respondent. It is not unusual for respondents to raise allegations against others as part of the investigation process, thereby “cloaking themselves” in whistleblowing protection. In the context of wellbeing, the detriment complained of could be that active steps are taken to support the complainant but that similar measures are not offered to the respondent (or vice versa).
• Discrimination (disability): If an individual has or develops a condition (impairment) which has a substantial adverse effect on their ability to carry out normal day-to-day activities, they could be “disabled” for the purposes of the Equality Act 2010. Anxiety and depression may fall within this definition, depending on the symptoms experienced and their effect. This would not only mean that those individuals are protected from discrimination, it would also trigger a duty on the employer to make “reasonable adjustments” to alleviate the disadvantage suffered by the individual as a result of their condition.
• Discrimination (another protected characteristic): A discrimination claim may also be brought on the grounds of sex/age or another protected characteristic if one individual (for example, female complainant) feels they are being treated less favourably than another (a male respondent) and claims that this is due to their sex/age or other characteristic. Again, whether this would even be arguable very much depends on the facts, but the risk highlights the importance of employers treating everyone equally in terms of the support offered and general treatment of employees. It should be kept in mind that both the complainant and respondent are employees of the company and that it owes them both the same duties as an employer.

Compensation that may be awarded for successful discrimination and whistleblowing claims is not subject to a statutory cap (unlike for “pure” unfair dismissal claims) and such claims may also be brought by employees with less than two years’ service (the minimum period of service currently required for protection from unfair dismissal).

There may also be claims in respect of damage to the individual’s reputation, particularly if the allegations in question are made public and the distress this is likely to cause.

What can be done?
It is no coincidence that the revised ACAS guide on suspension during a workplace investigation focuses on the need to have in mind the mental health and well-being of the person being suspended. There is now a much greater recognition and emphasis on this very important factor and that ACAS guidance has a specific section on supporting mental health.

In April 2023, ACAS published new and specific guidance on reasonable adjustments for mental health. Although designed for situations where the condition of employees can amount to a disability for the purposes of the Equality Act 2010, the guide also makes clear that employers should try to make reasonable adjustments for mental health even if the issue is not a disability.     

It is therefore advisable for companies to consider putting in place a comprehensive pastoral care plan at the outset of a workplace investigation involving allegations of serious wrongdoing. This could include:

• Providing individuals with the contact details of a dedicated member of HR they can contact if they have any concerns or feel they are struggling with the process. That member of HR could also be instructed to proactively contact individuals at regular intervals to check-in with them and, if appropriate, provide an update on the process.
• Allocating a member of management (perhaps their line manager) to the complainant and respondent (and others if felt needed) to also act as a point of contact for pastoral care purposes.
• If anyone does become ill or express finding it difficult to cope, considering a referral to occupational health advisers for guidance.
• Considering whether it would be beneficial to fund counselling and/or coaching for the complainant and respondent. This may be particularly helpful after an investigation has concluded and anyone who has been absent from work is due to return.
• Signposting other support that is available (access to an employee assistance programme or any trained mental health first aiders in the company, for example) and encouraging individuals to make us of them. If such resources are not available, external sources of help such as the Samaritans may be mentioned.
• Being flexible and considering any adjustments or requests for support submitted by affected individuals.

In addition to the ACAS guidance mentioned, further advice may be found in the CIPD’s guide for people managers on supporting mental health at work and the Health & Safety Executive website. 

As well as limiting the company’s exposure to claims and fulfilling both a legal and moral obligations towards employees, taking steps to safeguard the health and wellbeing of those involved in an investigation also increases the chances of the matter progressing smoothly.

Employees are much more likely to engage in the process and be cooperative if they feel they are being listened to and that their employer genuinely cares about their well-being. It is therefore important to ensure that measures around employee wellbeing and safeguarding form an integral part of the initial planning process in any investigation and that they are kept under review throughout.

Further information

If you have any questions regarding this blog, please contact Niki Southern or Özlem Mehmet. 

About the authors 

Nikola Southern combines technical rigour with commercial nous and a pragmatic, strategic approach to place clients in the best possible position to avoid litigation, initiate claims or, for employers, provide a strong defence to any claims and reach favourable resolutions. 

Özlem Mehmet is a Senior Professional Support Lawyer in our Employment Team.