Getting the balance right: Managing obligations to employees who are the subject of safeguarding investigations

The Royal Commission into Institutional Responses to Child Sexual Abuse (the Royal Commission) investigated issues arising from institutions’ management of complaints in relation to child sexual abuse. The Royal Commission found there were a number of issues which led to children being placed at ongoing risk, including:

  • failing to appropriately assess and mitigate the level of risk an employee poses to children once an allegation has been made;
  • permitting the employee to continue to work with children;
  • reassigning an employee to similar duties without sufficiently considering the nature of the risk they pose to children; and
  • failing to suspend an employee when the risk was unable to be managed by other safeguards.

The Royal Commission found that employers needed to do more to make child safety the paramount consideration in managing employees who are the subject of an investigation. The Royal Commission contains valuable findings and recommendations, which should be used and considered across all industries working with children and vulnerable people.

What steps can an employer take to safeguard children and vulnerable people once an allegation has been made?

Once an allegation has been made, employers should conduct a preliminary risk assessment to determine what steps can be taken to appropriately safeguard against further harm, including whether an employee should be suspended while the investigation is underway. The Royal Commission recommended if an allegation of child sexual abuse is made, and the allegation is ‘plausible’ then the employee should be immediately stood down pending the outcome of an investigation. In determining whether an employee should be stood down, an employer should give consideration to the gravity and seriousness of the alleged misconduct. When there are competing priorities for the employer, the safety of children and vulnerable people must be the paramount consideration.

These arrangements should be continuously monitored and reassessed to maintain the safety of children and vulnerable people as the key priority. If the investigation takes some time to be completed, it may be appropriate to request that the investigator provide an interim report summarising the findings to date to inform a reassessment of the safeguarding arrangements in place.

What about my obligations to my employee?

An employer should clearly communicate the arrangements to the employee under investigation and the reasons for imposing those arrangements. If it is determined that suspension is appropriate in the circumstances, the employee should be informed of the likely duration of the suspension, what the employee can and cannot do while on suspension, and the employee’s entitlement to receive wages and other benefits.

Other safeguards should also be put in place to manage the impact the arrangements may have on the employee, including:

  • engaging an independent investigator to minimise actual or apparent bias and provide procedural fairness to complainants, witnesses, victim/survivors and respondents (see our recent article considering what makes a good investigation);
  • ensuring that the employee is afforded procedural fairness, by providing the employee with particulars of the allegations and an opportunity to respond;
  • providing the employee with a point of contact during the investigation, including frequent updates regarding the progress of the investigation;
  • making psychological support services available to the employee to manage risks to their health; and
  • maintaining confidentiality regarding the investigation, including when communicating the employee’s period of absence to other members of staff.

What if police are also investigating?

A workplace investigation must not interfere with any police investigation. Employers should communicate with police to assess when they can commence an internal investigation. This can create a difficult situation for employers who have suspended an employee with pay and a police investigation is taking a significantly long time before charges are laid or a final hearing takes place. Dismissing an employee in these circumstances may risk an unfair dismissal claim, general protections claim or workers’ compensation claim being made against an employer, and requires careful steps to be taken to manage legal and reputational risks to employers and employees alike.

How Moores can help

Moores can help you to identify the necessary steps to strike the right balance between your safeguarding obligations and employment obligations. We can also assist you in communicating with your employee and conducting an efficient and independent investigation in your workplace. Please get in touch with Patrice Fitzgerald and Melissa Elleray in our safeguarding and workplace relations teams for further information on what Moores can do for you.

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