Workplace investigations are meant to resolve harm, but they’re increasingly becoming a potential source of it. With courts beginning to hold employers accountable for psychosocial risks created during the investigation process itself, two work health and safety lawyers outline key issues for HR to consider.

Organisations are increasingly at risk of investigation and prosecution by work health and safety (WHS) regulators for how they conduct workplace investigations.

Recent court decisions have firmly established that investigation processes themselves constitute psychosocial hazards, and the standards expected of organisations in managing psychosocial risks during investigations are becoming both clearer and more stringent.  

This article examines organisations’ obligations to identify and minimise psychosocial hazards arising in the course of workplace investigations, including lessons from recent WHS regulator enforcement action and prosecutions. 

What are your obligations as an employer?

The Courts have confirmed in emphatic terms that investigation processes themselves constitute psychosocial hazards.  

Organisations therefore have duties under WHS law to eliminate or minimise psychosocial risks arising from investigation processes, so far as is reasonably practicable.  

To do this, it’s first critical to consider the circumstances in which an investigation is required. If a psychosocial risk can be identified and assessed, and mitigation actions implemented, under WHS law, an investigation may be unnecessary. In addition, the investigation could expose workers to unnecessary trauma. 

Of course, there may be many other reasons that an investigation must be undertaken, either arising from other employment related laws or the organisation’s processes. WHS regulations and psychosocial risk management codes of practice in each jurisdiction impose specific requirements for control measures, including (subject to some variation) that controls be implemented in accordance with the hierarchy of controls. 

In practice, this is a requirement that is not always well understood. The hierarchy of controls requires organisations to prioritise higher order controls – those that eliminate or redesign the source of the risk – over lower order controls, which manage the symptoms rather than the cause.

In the context of a workplace investigation, that means the focus should be on how the investigation itself is designed and conducted, and not just defaulting to measures like an EAP referral or recommending that a participant speak to a counsellor. 

Those responses may have a role to play, but they sit at the bottom of the hierarchy. Relying on them as the primary control is unlikely to satisfy a regulator – or a court.

For example, if an investigation process requires a respondent to attend multiple lengthy interviews with little notice, limited support, and no clear timeline for resolution, the psychosocial risk is unlikely to be addressed by telling that person to call the EAP. The higher order response is to redesign the process – setting clear timeframes, providing procedural fairness at each stage, ensuring both parties have access to a support person, and minimising unnecessary delays that prolong uncertainty and distress.

HR teams need to consider from the outset “have we designed this process in a way that reduces the risk of harm in the first place?” Considerations can then turn to what supports might be required for participants. 

“The hierarchy of controls requires organisations to prioritise higher order controls – those that eliminate or redesign the source of the risk – over lower order controls, which manage the symptoms rather than the cause.”

Lessons from WHS regulator enforcement action and prosecutions

Recent decisions and publicly reported examples of investigations that have “gone wrong” provide practical insights as to what is expected of organisations in managing psychosocial risks during workplace investigations. 

Key insights include:

• While individuals may respond differently to psychosocial hazards arising during investigations, this does not diminish an organisation’s obligation to identify, assess and control those risks.
• It’s not acceptable to follow a prescribed investigation process to completion, without regard for the psychosocial impact of that process on those involved. Organisations should monitor the impact of the investigation on individuals in real time. 
  Investigators must be empowered to adjust, suspend or modify the process where necessary to mitigate risks to psychological health.
• Timely escalation mechanisms are critical. Where there are indications that participants are experiencing distress, or there is a risk of self-harm, organisations must act immediately, including by engaging appropriate supports where necessary.
• Investigations must be robust, credible, and consistent with principles of organisational justice. Even where evidence suggests there has been a technical breach of employment policies or codes of conduct, this may not necessarily mean that disciplinary action is warranted, if such action is inconsistent with principles of organisational justice.   
• Protracted investigations may create and also exacerbate psychosocial risks. The mere existence of an investigations policy prescribing timeframes is insufficient to control those risks, unless it is supported by effective safeguards to ensure investigations are progressed and finalised within those timeframes in practice.
• Inadequate communication about the progress, status and expected duration of an investigation can create or exacerbate psychosocial risks. Effective systems should include structured and regular communication to reduce uncertainty and support worker wellbeing during the process.
• Failing to provide sufficiently particularised allegations at an early stage can create uncertainty and distress, giving rise to psychosocial risks. Investigation processes should require careful consideration of the psychological impact of both providing and withholding information. 
• The identification and allocation of alternative duties during investigations can also give rise to psychosocial risks.
  Processes that rely on unilateral decision-making or that assign duties not commensurate with a worker’s position may expose the worker to psychosocial hazards including role underload, role conflict and lack of role clarity.  
• Where complaints are made about a direct manager, maintaining existing reporting lines may pose psychosocial risks.
  Organisations should have structured processes to guide decision-making, including assessing the seniority of the parties, the likely psychological impact of the worker continuing to report to the manager and whether alternative reporting arrangements are required. 
• Where organisations receive reports of psychosocial risks (e.g. bullying, harassment and other harmful workplace behaviours and practices), a WHS investigation may need to occur concurrently with any employment or HR investigation. 
  The purpose of a WHS investigation is to assess the adequacy of existing risk controls and to identify any WHS risks that have not been eliminated or minimised, so far as is reasonably practicable. 
  Control measures identified through a WHS investigation should be implemented promptly, regardless of whether the underlying allegations are ultimately substantiated, and should be applied on an organisation wide basis (i.e. they are not limited to the specific facts or individuals involved in the particular complaint). 

Key message for HR practitioners 

As WHS regulators continue to scrutinise workplace investigation processes, organisations must ensure their investigation processes reflect a genuine commitment to psychological safety.   

A key guiding principle for organisations is that an investigation, regardless of its importance, should not be prioritised over an individual’s health and safety. 

Rather, the investigation needs to proceed in a manner that ensures, so far as is reasonably practicable, the health and safety of those involved.

🧰 HR’s career resource toolkit

• Article: Step inside a hypothetical psychosocial risk investigation
• Podcast: Listen to AHRI’s podcast episode on managing psychosocial risks during performance management on ER/IR Unpacked.
• Course: Writing Advanced Investigation Reports and Allegations course

Katherine Morris is a Partner and Annika Martz is a Special Counsel at Norton Rose Fulbright.